^ 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


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;:  HI  1 2.0 

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1.8 


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Photographic 

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23  WEST  MAIN  STREET 

WBSTER.N.Y.  14580 

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iif 


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I  I 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibiiographiques 


The  Institute  has  attempted  to  obtain  the  best 
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Q 


D 


D 


D 
D 


D 


D 


Coloured  covers/ 
Couverture  de  couleur 


r~|    Covers  damaged/ 


Couverture  endommag6e 


Covers  restored  and/or  laminated/ 
Couverture  restaurAe  et/ou  pellicul^e 


□    Cover  title  missing/ 
U 


.e  titre  de  couverture  manque 


□   Coloured  maps/ 
C 


Cartes  giographiques  en  couleur 

Coloured  ink  (i.e.  other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 


I      I   Coloured  plates  and/or  illustrations/ 


Planches  et/ou  illustrations  en  couleur 

Bound  with  other  material/ 
Relii  avec  d'autres  documents 

Tight  binding  may  cause  shadows  or  distortion 
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II  se  peut  que  certaines  pages  blanches  ajoutAes 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  Atait  possible,  ces  pages  n'ont 
pas  6t6  filmAes. 

Additional  comments:/ 
Commentaires  supplAmentaires: 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  6t6  possible  de  se  procurer.  Les  details 
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une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  mithode  normaSa  de  filmage 
sont  indiquAs  ci-dessous. 


I      I   Coloured  pages/ 


D 
D 

D 


D 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommag^es 

Pages  restored  and/or  lamineted/ 
Pages  restaurdes  et/ou  peliicui^es 

Pages  discoloured,  stained  or  foxed/ 
Pages  d6color6es.  tachet^es  ou  piqu^es 

Pages  detached/ 
Pages  d6tach6es 


r~y\    Showthrough/ 


Transparence 

Quality  of  prir 

Quality  in6gale  de  I'impression 

Includes  supplementary  materit 
Comprend  du  materiel  suppl^mentaire 


I      I    Quality  of  print  varies/ 

I      I   Includes  supplementary  material/ 


I — I    Only  edition  available/ 


Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuillet  d'errata,  une  pelure, 
etc.,  ont  M  filmAes  A  nouveau  de  fapon  d 
obtenir  la  meilleure  image  possible. 


Th 
to 


Th 
po 
of 
filr 


Or 
be 
th( 
sic 
oti 
fir! 
sio 
or 


Th 
sh< 

Tir 

wh 

M{ 
dif 
em 
be< 
rig 
rec 
m€ 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  filmA  an  taux  de  rMuction  indiquA  ci-dessous. 

10X  14X  18X  22X 


26X 


30X 


v/ 

12X 


16X 


20X 


24X 


28X 


32X 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

Harold  Campbell  Vaughan  Memorial  Library 
Acadia  Univenity 


L'exemplaire  fi!m6  f ut  reproduit  grdce  d  la 
g6n6ro8it6  de: 

Harold  Campbell  Vaughan  Memorial  Library 
Acadia  University 


The  images  appearing  here  are  the  best  quality 
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filming  contract  specifications. 


Les  images  suivantes  ont  6t6  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  et 
de  la  nettetd  de  l'exemplaire  filmd,  et  en 
conformit6  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  whan  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprim6e  sont  film^s  en  commenpant 
par  le  premier  plat  et  en  terminant  soit  par  la 
dernidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration,  soit  par  le  second 
plat,  selon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  film6s  en  commenpant  par  ia 
premidre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  et  en  terminant  par 
la  dernidre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  ^^  (meaning  "CON- 
TINUED "),  or  the  symbol  V  (meaning  "END  "), 
whichever  applies. 


Un  des  symboles  suivants  apparaftra  sur  la 
dernidre  image  de  chaque  microfiche,  selon  le 
cas:  le  symbole  — ►  signifie  "A  SUIVRE  ".  le 
symbole  V  signifie  "FIN". 


Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc.,  peuvent  dtre 
fiim^s  d  des  taux  de  reduction  diff6rents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clich6,  il  est  film6  d  partir 
de  Tangle  supdrieur  gauche,  de  gauche  d  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  ndcessaire.  Les  diagrammes  suivants 
illustrent  la  mdthode. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

THE  FISHERIES  DISPUTE 


A  Suggestion  for  its  Adjustment  by  Abrogating 

THE  Convention  of  i8i8,  and  Resting  on 

THE  Rights  and  Liberties  Defined 

in  the  Treaty  of  1783 


A   LETTER 


TO 


THE  HONOURABLE  WILLIAM  M.  EVARTS 

OF  THE   UNITED  STATES  SENATE 


BY 


JOHN   JAY 

LATE   MINISTER  TO   VIENNA 


NEW   YORK 
DODD,   MEAD    &    COMPANY 

PUBLISHERS 
1887 


3  3  '^>.  S 


1    'I 


■-^■'X 


'''*'T^''^'^.-^i 


;■?,*:•»:.;  f^j   Wr"*!.-. 


f,9^V 


:%M- 


m 


:•&  '»'■ 


;"«' 


,4 


THE  FISHERIES  DISPUTE 


A    SUflGESTION    FOR    ITS   ADJUSTMENT   1!V  AliROGATING 

THE  Convention  oe    i8i8,  and   Resting  on 

THE  Rkjhts  and  LH!EkTn:s  Deeexed 

in  THE  Treaty  of   1783 


A    LETTER 


TO 


THE  IIONOIIRAIU.F.  WII.LIAM  M.  EVARTS 

OK   THE    UNITED    STATES   SENATE 


BY 


JOHN    JAY 


I.AIE    MINISTER   TO    VIENNA 


mM-' 


NEW    \ORK 
DODD,    MEAD    &    COMPANY 

PUBLISHERS 
1887 


-RIN-'fNG  AND  500KBiNDiNG  COMPAN'' 
NEW   ^3RK, 


THE   FISHKRIES   DISPUTE 


Di:Ak  Alk.  I^vari'S  :  The  necessity  of  some  decisive  ac- 
tion by  tile  (luvernment  to  arrest  tlie  vexations  and  harass- 
ing treatment  of  onr  fishermen  l^y  tlie  Canadian  antlioritics 
is  recognized  Ijy  tlie  cnnntry,  as  well  for  the  protection  of 
onr  own  rights  as  for  the  avoidance  of  a  breach  of  onr 
harmonious  relations  with  Great  Jiritain  ;  and  the  passage 
in  the  Senate  by  46  to  I  of  Senator  I'Almunds'  bill  to  au- 
thorize the  President  to  protect  and  defend  the  rights  of 
American  fishing  vessels,  American  fishermen,  and  Ameri- 
can trading  and  other  vessels  in  certain  cases  for  other  pur- 
poses, seems  to  show  that  the  Senate  shares  the  judgment 
of  the  country  that  a  continuance  of  the  policy  under  which 
such  annoyances  are  possible  would  be  a  mistake,  and  that 
their  further  toleration  is  forbidden  by  a  decent  regard  to 
the  riglits  ot  our  fishermen,  and  to  the  peace,  interest,  and 
dignity  ol  the  nation. 

Upon  the  question  how  far  the  bill  is  calculated  to  dis- 
turb our  friendly  relations  with  Great  Britain,  tlie  New 
York  llcralti  reports  your  views  as  follows  : 

Mr.  lu-.irts  argued  in  support  of  tlie  bill,  wliicli  he  said,  was  not 
in  the  iiaUiru  of  a  menace  or  tcndin;^-  at  all  in  that  direction.  It  was 
the  duty  of  Congress  to  take  the  subject  away  from  local  disturbance, 
irritation,  and  resentments.  So  far  from  the  Ijill  tendini,^  to  war  or 
tendin;^  to  underage,  il  was  intendetl  to  have  a  contrary  effect.  It  was 
an  innnediate  announcenient  to  the  people  that  they  had  only  to  trust 
their  protection,  not  to  personal  resentment,  but  to  the  Government  of 
the  United  States,  and  when  the  opening  summer  should  liring  .ibout 
the  recurrence  of  the  fishing  season  and  of  the  lishing  dangers,  the 


i'M?/! 


"^  THK    FISIIKRIKS    DISPUTE. 

one    not    thnro„ol>lv  .u-u-o  of  .       '''"  ^'^'"^''^'^>'  ^^■^1'   ^vl'ich 
slicld  vc.,t„rc  1„  ,„)-„  advice      TI,:  "''H-'iation, 

ies,  l.ovvcvc,-,  i,  pcculh,  ">'»  <l"«t,„n  of  ll,e  (isl.cr- 

---  .-op-'  i':  r  s:  •  ,;v!::rr ,::::  ;;;:f  •  -"  "- 

of  11,0  Socrctarv  of  tl,e  Trc™  v  n  h'  n  ^'  "  "'°  '■'■''"" 
■4,  .886,  a„d  .if  ,.-obn,..  Hi  °  ",  ".°";=  "^  »-"'^- 
tarv  Havard    to   the  S™  ,t        f  ,  '^  "^  !«'«■  of  Socte- 

re..ob:,ioi,„fA,/-u,  "a  ,;;;:'i"n ""  "'■■  "'■''"°"'>  "- 

fore  ti.o'-co,,,,  ,.    '      r   't  rr':;:""l  ""''"'"'  '°  ■""">■ '^- 
'ato  a  day   tliat'a  ,„      ,  t  ~'-'-«P°"<lciice  to  so 

';a»cd„p^;,;::;:i:i-:™,:^-^^-c<;n^do™^^ 

be  regarded  as  u„ti,„eiy  or  in.proper  '-■^';- '""'.k 

RETA,.,AT,,,X   AS   ,    R„„^,,   TuMPORAKV    AKO    Ixccn, 

PI.ETE. 

seer:;™::'-:',:^':^',;:^;;™''- ---'■ '^y-aHatio„ 

differcce  of  opia;.:,  'CJ  :" 'If  :™"S'y  in.ec„.,ci,ab,e 
Britain  and  tl.at  of  .„o  U  ,"  S  te  .T"'',"""" ,  "'  ^■'""" 
of  the  ,  i;,hts  of  o,„.  fishern,        nd    .   he  r  "  ""^  '^•■-■'"" 

And  if  that  Convention  is  "" a  l  I  i  ^""""l'"'"  °f  'S'S. 
-hich  we  have  had  with  into  "aid  ""'"-"  ""'  '"""'^ 
.-etaliation  in  truth  the  n,o  sco  p,e,:™°d  r:" '^  ^"""''  " 
o.  n.y  not  a  threat  have  npon  th^'t,:,;!  ^^1  ^^et t 


THE   FISIIEUIKS   DfSPUTE. 


■tikI,  if  not 
'""-•lUs,  in  a 
ti>  have  sta- 

pcace  and 
itain. 

-  prt)j)osi- 

-  is  await- 
tli  which 
,^oliation, 
le  fislicr- 

,  and  tlie 
'■cspoiul- 
Deccin- 
c  rcph'cs 
eccmber 
'f  Sccre- 
vith  the 
out,  tlie 
'crctary 
iilly  be- 
:e  to  so 
on  and 
I  think 


XCOM- 

h'ation 
cilable 
Great 
:xtent 
1818. 
oiible 
irs,  is 
edy  ? 
effect 


5 


it  would  liave  upon  ourselves,  disposing  us  to  firjht  ratlier 
than  to  ar;_;ue  ?  or  if  we  are  forced  to  retaliation  as  a  last 
resort,  slioulti  not  its  su<j<,festion  be  accompanied  by  sonic 
proposition  looking;-  to  a  fundamental  and  p(  rmancnt  read- 
justment of  our  rinhls  ? 

When  Mr.  liayard,  imder  the  date  of  November  6,  1886, 
referring  to  the  seizure  of  the  Marion  (irimes,  held  that  the 
Dominion  (io\ernment  was  seeking  b\-  its  action  in  the 
matter  to  "  invade  and  flestroy  the  commercial  rii;hts  and 
privileges  .secured  to  the  citi/.cns  of  the  I'nited  Slates  nnder 
and  b)'  virtue  of  treaty  stipulations  with  (ireat  Jiritain," 
the  (iovernor-General  of  Canada,  the  Marquis  of  Lans- 
doune  held  that  that  statement  was  "  not  warr.uUed  by  the 
facts  of  the  case,"  and  that  the  two  vessels  that  had  been 
seized  were  "  fishing  vessels  and  not  traders,  and  therefore 
liable,  subject  to  the  guiding  of  the  courts,  to  any  penal- 
ties imposed  b\-  law  foi  the  enforcement  of  the  Con\enti(ni 
of  1818,  on  parties  violating  the  terms  of  that  Conven- 
tion." 

Nor  was  this  simply  the  judgment  of  the  Governor-Gen- 
eral of  Canada,  for  Marl  Rosebcry  wrote  :  "  1  have  to  add 
that  iler  Majesty's  Government  entirely  concurs  in  the  view 
expressed  by  the  Marquis  of  Lansdowne." 

If  the  judgment  of  the  liritish  Government  on  that  point, 
based  apparently  on  a  system  of  interpretation  which  is 
held  at  Washington  to  be  so  narrow,  strained,  and  technical 
that  it  ignores  not  only  the  motives  which  induced  Ameri- 
cans to  accept  the  Treaty  of  1818,  but  ignores  also  the  rights 
and  the  duties  that  belong  to  international  comity  and  the 
law  of  nations — if  that  judgment  lias  not  been  changed  by 
the  able  and  courteous  arguments  of  Mr.  Ikiyard  and  Mr. 
Phelps,  and  the  grave  reports  of  Senator  lulmunds  and  Mr. 
Manning,  is  it  likely  to  yield  more  readil}-  when  the  calm 
of  diplomacy  shall  have  been  interru])teil  by  the  irritating 
measures  of  retaliation,  which  Senator  Edmunds'  bill,  or  the 
yet  m(n-e  stringent  bill  by  Mr.  ])elmont  in  the  House,  ex- 
tending to  Canadian  locomotives  and  cars,  goods,  wares, 


6 


Tlir;    I'lSIIIKIl'.S    DISI'UTE. 


and  incn-cliandisc.  autliori/cs  t!ic  rrcsideiit  to  proclaim  ? 
Will  it  be  moiL-  easy  1(1  come  to  an  amicable  undcTstandin^', 
alter  the  \'csscls  of  the  Hiilish  Duminion  in  America  have 
be'en  exchided  from  oiir  ports,  or  Canadian  railwax'  trains 
stopped  at  the  hinder,  in  retaliation  tor  the  treatment  of  oiir 
fishermen;  a  trealment  uhirh  the  Mini,  ler.s  of  Canada  and 
Cjreat  liiit.iin  decKn'e  is  ju-t  ilied  Ijy  the  strict  letter  of  the 
Treaty   of    iSiS,    hi)we\er.   in    the   e)-es   of  v\mericans,  un- 


friend 


}■,  iidii>spital)lc,  or  even  bai'barons  ? 


IWini:-!!  Mi-i(.\siki-i-nn\  (i|.    I  III: 'I'Ki:  A  TV  oi-  i."-'  S. 

(  )n  (me  point  both  Mr.  ISax'ard  and  h'arl  l\(>sc;bery.  Mr. 
Phelps  and  Lord  Sali-bur\'  >eem  to  be  aL;reed,  that  the 
Treat)-  of  iSiS  is  the  law  on  the  interpretation  ')f  whi'di  de- 
pends the  deei-ion  of  the  (piestion  in  tli-])ute.  Piut  ilie  re- 
cent correspondence  on  die  riudits  of  American  fi-^heinien, 
snbmilletl  by  the  President  to  the  Senate  on  Decendjer  8, 
iSSf),  shows  that  this  apparently  simple  cpiestion  of  inter- 
pretation is,  in  tiu'  \-ie\\  of  the  U(^])artnient,  t'airl\- inllnencctl 
bv  the  series  of  law^  and  regulations  reterreil  to  b\-  Mr. 
J)ayaid.  afl'^cliii!;  the  ti'ade  between  the  Ib-ilish  I'ro\'Inces  of 
North  America  and  the  United  States,  which  ha\'e  since 
been  resi)cc:ti\el\-  adcvpletl  by  the  two  countries,  and  have 
led  to  amicable  and  beneficial  relations  betw  cen  their  re- 
specti\'e  inhabitants.  buiUlin^^'  up  a  trade  between  the  two 
countries  hninded  on  mutual  interest  and  ath'antai^e,  and 
cstablishin;4  a  reciprocal  liberty  of  commerce.  1  he  ([ues- 
tion  is  next,  as  Mr.  i'ayard  and  Mr.  Manning  have  both 
shown,  improperly  subjected,  as  ie_^ards  American  riL;hts,  to 
acts  of  colonial  lei^i-lation  uiuhn-  a  sui)posed  delec,fation  of 
jurisdiction  b\-  the  Imperial  (iovernment  of  Cireat  Ibitain, 
and  secMiiiiuj;l_\-  intended  to  include  authority  to  interpret  and 
enforce  the  pro\-isioiis  of  the  Treaty  of  l8i.S.  The  ehect  of 
the  Colonial  lej^islation  and  colonial  e.xecutive  interpreta- 
tion, if  executed  accordinc;  to  the  letter,  would  be,  ;is  Mr. 
Bayard  contends  in  his  letter   to   Sir  L.  li.  Sackville  West, 


'(-'I'^^taiuiiiiL,', 
iicrica  have 
''"■■•'>•  trains 
mem  of  (Mir 
^  ''inada  and 
t'llcr  of  the 
-i-ic.ins  iin- 


■bcry.  Afr. 
.    tiiat   the 
wlii'-h   c!c- 
it   die  re- 
ishenneii, 
:emljcr  8, 
of  intcr- 
I'liienccd 

\'iiices  of 
\''-"   since 
11(1   ])ave 
heir   iq. 
tlic  two 
.^L',  and 
L'  ques- 
'e  both 
■^I'ts,  to 
tion   of 
'litain, 
'■etand 
i'ect  of 
■pi'eta- 
s    Mv. 
West, 


THE   FrSMERIKS    DISI'UTi:.  7 

of  AIa\'  ro,  lSS6,  to  expand  the  restrictions  and  rentmcia- 
tions  of  tlic  Treaty  of  i8iS,  and  to  further  diminish  and 
practically  deslru)-  the  privileges  expressly  seemed  to 
American  hshinjr  vessels  to  \i<it  tlic  inshore  waters  for 
shelter,  tlu?  repair  of  damat;es,  tlie  purchase  of  wood,  and 
tlie  obtaining;'  of  water. 

The  seizure  and  detention,  for  inst.ince,  b\- liie  Canadian 
.luthoritics  of  the    David   J.  Adams  which    Mr.  lki\-ard   in 
in\  note  to  .Sir  Lionel  I',.  Sackville   West,  of    Mav  .--o.  iN.sr, 
characterized  as  "  unwarranted,  irre;^ular,  and   severe,''   aj)- 
peared  to  rest  on  charc^es  : 

I.  Of  violating  the  Treaty  of  i8i8. 

II.  Of  allef,fcd  violation  of  the  Act  59  Georf^e  TIL 

III.  Of  alleiyed    violation  of  the    colonial    A^.'    of  Nova 
Scotia  of  iSiS,  and 

l\'.   Of  alleged  violation  of  Canadian  .Statutes  of  i8;o 
and  ;SS.5. 

An<l  I\:  •.  L^^yard,  in  his  telegram  of  Ala\-  22(1.  to  Air. 
Plielixs,  retcrs  to  "  \-exatious  inlcrprelalions,  an.i  actions  of 
iucal  authorities  wjiich  can  on]\-  hinder  an  amicable  award."' 
On  June  14th,  Secretary  iJaj-ard,  in  regard  to  the  allegations 
that  American  vessels  would  not  be  permitted  to  land  fish 
at  Halifax  for  transp(u-tation  in  bond  across  the  Province, 
and  that  American  \  essels  had  been  warned  to  keep  outside 
of  a  line  drawn  from  headland  to  heatllaiul,  said  : 

A<.jainst  this  treatment  I  imist  instantly  and  fcirnially  protest  as  an 
iin\v,iiTaiuaI)le  iiuerpiclation  and  aijplir.ition  of  the  'J'realy  ]>y  tlic  of- 
ficers of  tlic  Dominion  of  Canatla  and  the  riovince  of  Nova  Scotia  ;  as 
an  inxasion  of  the  laws  of  commercial  and  maritime  intercourse  exist- 
ing lieiween  the  two  countries,  and  a  violation  of  lio:-pitalitv  ;  and  for 
any  loss  oi-  injiirN  re:.tiltin-  therefrom  the  Government  of  Her  ISritish 
Majesty  will  be  held  responsible. 

In  reply  lu  your  cnmplainis  of  oiilra-cs,  the  llritidi  Minister  at 
W.tshiii-inn  has  ad\ised  us  that  the  matter  has  been  referreil  to  the 
Domirion  Government,  and  Mr.  I'helps  at  London  has  been  informed 
that  no  further  steps  can  be  taken  about  the  cases  before  the  Canadian 
courts  have  been  adjudicated. 


II 


8 


THK    FISI1KRII-:S    DISl'UTK. 


Ihc  question,  therefore,  of  the  rights  of  American  fisher- 
men under  tlie  Treaty  of  i8iS.  is  made  by  the  l^ritisli  Gov- 
ernment to  depend  not  altogetlier  on  that  Treaty  alone,  but 
partly,  as   it  would  .'.eem,  on  a  statute  of  (George   111.,   on 
colonial  acts  of  the  ]5;iiish   rrovinccs.  the   rulinos  of  Cana- 
dian courts,  and  the  proclamation  ami  acts  of  colonial   olh- 
cers— all   assuming  to  be  based  on  the  provisions  of  that 
Ircaty.     This   fact   justiiics  a  careful  consideration  of  the 
relative  advantages  and  disadvantages  which  result  to  us  at 
this  moment   from  the  Convention  which  for  so  long  a  time 
has  played  a   i)rincipal   part  in   this   regrctable  and\-hronic 
controversy    -a  treaty  which  under  the  interpretation  placed 
upon  it  by  Canadian  and  British  officials  is    being  used  not 
as  a  shield  to  protect  our  fishermen  in  the  enjoyment  of  their 
rights,  but  as  a  weapon  for  the  interruption  of  their  business 
and  their  helpless  subjection  to  wrong  and  humiliation. 

This  state  of  things,  which  by  no  means  accords  with  the 
American  idea  of  national  fitness,  and  which  it  is  proposed 
temporarily  to  correct  if  necessary  by  retaliation,  clearly  re- 
quu-es  a  thorough  and  permanent  change,  based  not  on  re- 
taliation for  wrong,  but  on  clear  principles  of  right ;  and  we 
find  two  propositions  from  Hritish  sources  looking  to  a 
peaceful  remedy  which  deserve  respectful  consideratTon. 

Offkks  ok  Xkcotiatkix  and  AkHirKAriDX. 

The  one  is  a  proposition  from  Lord  Rosebery  for  a  frank 
and  friendly  consideration  of  ihe  whole  question'with  a  view 
to  the  revision  of  the  Treaty  oi  iSi8, 

T/ie  sceoiK/  is  said  to  be  a  semi-official  proposition  from 
the  Montreal  Ga.-ctte,  the  official  organ  of  the  Dominion 
Government  of  the  35th  of  January,  which  said  :  "  If,  instead 
of  resorting  to  cuercive  measures,  the  United  States  Con- 
gress could  consent  to  AKiiiTRATios,  it  would  adopt  the 
manlier  and  more  dignified  course." 

Either  of  these  plans,  adopted  by  mutual  agreement,  upon 
a  basis  that  would  certainly  secure  the  original   rights  and 


THE    FISIII'RIKS   DISPUTE. 


9 


^erican  fislicr- 
-  l^ritish  Gov- 
;it\'  alone,  but 

'>'-yi^  ill.,  OM 

'"S-^  of  Cana- 
culoni.il  ciffi- 
^u>n^  of"  that 
ratio;)   of  the 
-suit  to  us  at 
'  '"'ig  a  time 
^>ihI   chronic 
'■'tion  phiced 
'\i^"  used  not 
iicntofilieii- 
<-'"■  IJiisincss 
liatioii. 
'tis  uitli  tjie 
■'^  l>''opo.sed 
.  clearly  re- 
"t't  on  re- 
t :  and  we 
kino-   to   a 
-'■ation. 

'Ion. 

=^"'a  franlc 
fli  a  view 

;ion  from 
dominion 
f^.  instead 
tc>s  Con- 
tlopt  tile 

"t,  upon 
lits  and 


interests  of  our  fishermen  as  recognized  by  Great  Britain  in 
the  Treaty  of  Peace,  would  be  preferable  to  any  measure 
that  mi_L;ht:  bear  the  character  of  opposition  or  retali.iliou. 
l^ut  without  an  admitted  basis  of  nrinciple  ami  riL;lit  ilis- 
tinctl)-  formulated,  as  were  the  three  rules  laid  tlown  fur  the 
Geneva  .Arbitration,  and  to  wliich  Great  Britain  wisely  t;'ave 
her  adhesion,  it  would  seem  idle  to  expect  a  satisfact(u\- 
measure  of  justice  either  from  nej^otiation  or  arbitration. 
Our  recent  nes^'otiations  have  only  served  to  make  more 
clear  the  fact  that  the  two  _g(nernments  limk  at  the  ri<^hts  of 
our  t'lshermen  from  different  stand-points  ;  and  without  an 
ai^reement  in  advance  upon  the  rules  by  whicii  the  arbitra- 
tors are  to  i)e  i;iiided,  an  award  would  probably  dissatisfy 
the  defeated  party,  and  ser\'e  as  little  to  commend  arbitra- 
tion to  thouL;htful  l^ni;iish  or  i\mericans  as  the  American 
claim  for  indirect  dama<;es  at  (icneva,  or  the  awarti  cif 
the  J?el^ian  umpire  at  Halifax. 

There  should  be  no  difficulty  in  af^reeing  on  a  l)asis 
for  either  nes^otiation  or  arbitration,  in  the  shape  of  rules 
declarin<]^  the  right  of  our  llshermen  in  iant^uat^e  that  even 
our  Canadian  tViends  can  understand,  when  it  is  remembered 
that  their  violation  of  the  Treaty  of  iSiS  has  given  us  a 
right  to  abrogate  that  treat)'  ;  and  that  its  abrogation  would 
restore  to  force  Article  111.  of  the  Treat}'  of  Peace  in  17S3, 
the  operation  of  which  was  suspended  by  the  Treat}-  of 
1818,  but  which  UDuld  re\  ive  in  its  i)rigin.d  force  were  the 
Treat}' of  iSiSalirdgatetl  ;  precisel}',  the  latter  treat}',  as  after 
being  suspended  b}'  the  adoption  of  the  Re-ciprocit}'  Treaty 
of  1854,  was  re\-i\'ed  b}'  its  termination  in  1S66;  and  after 
being  again  suspended  b}-  the  'I'reat}'  of  1S71,  was  again  re- 
stored b}'  its  termination  in  1SS5.  If  our  British  friends 
should  have  a  doubt  upon  this  point,  antl  be  inclined  to 
tliink  that  our  rcgartl  for  the  sanctil}'  of  treaties  will  iiuluce 
us  to  pardon  their  \-iolation,  or  that  the  explculed  sugges- 
tion that  our  ancient  t'lsher}'  rights  recognized  and  defined 
at  the  peace,  were  lost  by  the  war  of  i8i3,  a  glance  at  the 
law  and  the  facts,  at  the  testimony  of  history  and  the  ojjin- 


ro 


''■f'l-:    VlSUKiUKS    DISPUTE. 


y: 


'^"'"^  ^^'^'Trsn  I>.MPosiTrnx  .,o  Rrvr 
J'le  note  of  the   I'--,,-!      f   i^ 

P"'""r  colonial,  to  effect  ,|"  '"'""'"."  «t"t.,tes,  i„,. 

-;"H--ncd  of.  ,,  ,,  q„e„i    ;„';•"-  «f  ■\".crica„  vesse  s 

""patch  „./.,,„„t  addi„;-„„     ,7;"°'.  '-"-ever,  closest, 

-'"  I'nvy  C„„„ci,.  i„  „,  i^i,  .=    °     I'---  -port  of  ,„e  An.eti- 

^-■]n.  of  the  Con.entio,,  of    .S,S  T"'  """  '  "^  "'o  pro. 

".  cKi.er  co,u,,,e,i„        .„       ^^''^   'ave  Ix-con.e  i„e„„„„f^ 

f-71-.Hn,,  c,„,  .,„-„\.  t    s  ,h   t  t.  "  """  »"~'"i"  » 

-■">.■•■     Lord  RoSe,;:dt ;     "  '"'""  ''■■'"  -^^  -cu.sid 


I)0CS   not  thfs   Sllcro-esffnn  •     • 

l;':y  con„ci,  .„„, :;;  r;::';;;.;"^';"..^  "■■■>'.  t-.o  o„ac,,-a„ 

<-|."n.„,.,.  ,,f   ,,,,,;'    ^^.io,>otdKse,u.  that,,, e 

-;'  'a.  that  Co,n.e„,io„  ,,,;•'.''?''■■■''  P-ci.matio„ 
y-h  .-.bro.atcd,  before  ,,        ^'"f  ""--ily  ,,vi,sed,  .  ,: 

P-™.-",e„,  .ettle,„e„t  of  th     „;,      i::':"  ^'  .-'-''-tot,- a„d 

;\<l"m,„,c;-  I.ordK„,eberv     ,'""'■"""■ 
tending- , I, at  it,,.., ,  f  '•'    ™   Uf   in   tlie   ri,,I,f-   ■ 

,,...^"  '"■'<  from  no  fault  on  fl,  ""   '"  "'n- 


THE   FISHERIES    DISPUTE. 


II 


y  tlicni  on  tliesc 


'■'IE  Tkeatv. 

^'■-  ^Vest,  under 
•'e  competency 
af  .'Statutes,  ini'. 
fit-'i'ican  vessels 
occupying-  the 
^'^■r,  close  this 
Go\erni)icnt 
^fthe  Anieri- 
^.'^fthepro- 
inconxenient 
"""t'-wiil  and 
be  reconsid- 


''^'y's  r,ovcrn- 
'^''•ins  of  ilic 
""-■ir  anxiety 
''"ti'r  ii/>on  a 
■'"'  f/ir  wost 


Canadian 

^  J^n'tain, 

that  the 

"Acuities 
'-■'niatioi,, 
■\"ised,  or 
^"'■y  and 

in  con- 
>■  Majes- 
d  to  the 


terms  of  tlic  Convention  of  i8iS,  and  rccoq-iii/.ing  the  frank 
and  friendly  assurance  of  their  most  earnest  desire  to  arrive 
at  a  settlement  consonant  with  the  rights  and  interests  of 
the  United  States,  it  will  be  less  easy  to  defend  the  British 
Government  from  the  grave  resi)onsibility  of  having  persist- 
ently instigated,  first  at  Ghent,  and  again  at  London,  the 
adojiiion  of  the  Article  of  l8l8.  their  persistence  in  the  bold 
assertiiMi,  which  British  law  ofliccrs  had  shown  to  be  un- 
sound, that  we  had  lost  by  the  War  of  i8r2  our  original  and 
ancient  rights  to  the  fisheries  as  recognized  and  defined  in 
tlie  Treaty  of  Peace,  ami  by  their  acting  in  advance  on  that 
groundless  suggestion  as  soon  as  the  war  had  closed,  by 
wannng  and  seizing  our  fishing  vessels  without  reason  and 
without  law. 

Nothing,  therefori.',  C(Mdd  uku'c  bec<Miiethe  nobh'-t  char- 
acteristics (if  the  liritish  Go\-ernm(>nt  and  the  oi-it;sh  people 
th,m  a  fraidc  and  pr.ictical  exhibition  of  the  honorable  desire 
expres-edt  by  Lord  Rosebcry  to  arri\-e  at  a  just  settlement 
of  the  ([uestion.  If  they  assent  to  the  abandonment  of  the 
Convention  of  1818,  fraught  as  it  is  with  errors  of  law  ami 
wrongful  acts,  anil  which  Uu"  two  generation  ^  has  crippled  om- 
fishermen  in  their  ancient  rights,  and  subjected  the  Rcfiub- 
lic  to  \-exalions  and  affronts  which  ha\-e  become  so  intoler- 
able that  the  graxest  legidative  body  in  the  Republic  is 
read)-  for  retaliation  ;  if  they  assent  \.o  a  return  to  the  fair 
di\-i-ion  of  the  fisheries  made  by  i-he  two  empires  at  the 
peace  of  178:;- -anti  when  t!ie_\-  recid  the  part  b(n-ne  by 
Americans,  and  especially  the  New  hhiglauders,  during 
two  centuries  in  securing  the  fi-^heries,  tliey  ma)^  well  ad- 
mire the  moderation  of  our  demands  and  the  generosity  of 
our  concessions— there  wtuild  seem  to  be  no  shadow  of  rea- 
son \\h_\-  the  entire  question  of  tlie  fisheries  should  not  be 
arrant;ed  with  good-will  yn\  all  sides;  ami  with  a  common. 
di>poMti<m  to  ad\Mnce  in  our  commercial  arrangements  the 
mutual  interests  of  Great  lAritain,  Canada,  and  the  United 
States. 

A  glance  at  the  recent  treatment  of  our  fishing  ves-scls 


12 


THE    FISHERIES   DISPUTE. 


will  help  to  show  whether  there  is  any  reasonable  prospect 
of  an  amicable  arrangement,  especially  in  view  of  the  pro- 
posed measures  of  retaliation,  on  the  basis  of  the  Article  ot 
l8i8,  as  interpreted  by  the  J^ritish  Government,  and  will 
exhibit  the  solid  gronnds  for  the  belief  expressed  at  Wash- 
ington that  that  convention  lias  been  directly  violated  b)- 
the  British  both  in  legislation  and  in  practice. 


The  Recent  Treatment  oe  American  I'ishinci  Ves- 
sels. 

Looking  at  the  correspondence,  it  would  seem  as  if  every 
attempt  on  our  part  for  an  amicable  arrangement  had  be- 
come hopeless  through  the  irreconcilable  difference  of  view- 
as  to  the  rights  of  Americans  under  the  Treaty  of  iSl8,  and 
an  apparent  conhdence  on  the  part  of  our  Canadian  neigh- 
bors, which  seems  to  have  increased  rather  than  diminished 
since  our  payment  of  the  Halifax  award,  that  we  have  no 
rights  to  protect,  and  no  treaty  stipulation  under  which  we 
can  claim  protection.  The  peaceful  efforts  of  our  Govern- 
ment have  been  ineffectual,  and  their  just  hopes  have  been 
disappointed.  In  April,  iS86,  Mr.  Jiayard  wrote  to  Messrs. 
Gushing  and  McKennay,  of  Tortland,  who  had  i'lshing  ves- 
sels ready  for  the  J^anks,  and  who  had  asked  if  their  fishing 
vessels  could  call  at  Canadian  ports  for  men  and  be  pro- 
tected in  so  doing  : 

...  I  expect  to  obtain  sucli  an  understanding  as  will  relievo  our 
fisliernien  from  all  doulns  or  risk  in  the  exercise  of  the  ordinary  com- 
mercial privileges  of  friendly  ports,  to  whicii,  under  existing  laws  of 
Ijoth  countries,  I  consider  their  citizens  to  be  mutually  entitled  free 
from  molestation.   .   .   . 

On  July  26,  1 886,  President  Cleveland  sent  to  the  Sen- 
ate a  Rej)ort  of  the  Secretary  of  State  relating  to  the  seiz- 
ures and  detentions  of  American  vessels  in  Canadian 
waters,  in  which  Mr.  l^ayard  referred  to  the  correspon- 
dence then  pending  as  one  "  which  it  is  believed  must  soon 
terminate  in  an  amiable  settlement  mutually  just  and  hon- 


TE. 


THE   FISHERIES   DISPUTE. 


■•easonablc  prospect 
"   ^''^'\v'  of  tlic  pro- 
p's of  the  Article  ol 
'^^'"""lent,   and   uiJl 
;^-p'-c.s.scd  at  Was])- 
'■^^ctly  violated   b\- 
tice.  ^ 

^  J^'r.si(L\(;  Ves- 

•^  seem  as  if  everv 
'Scmcnt  JkkI  bc'- 
''l^t.-reiice  of  view 

-^'ty  of  J 8] 8,  and 
'-'^iiiadian  neigh. 
*Jian  diniinisJied 
'''t  U'e  iiave  „o 
'"^^'''  which  we 
'^^oin-  Goveni- 
'Pes  Jiave  been 
'-ote  to  Messrs. 
''^ti  /isliing  ves- 
ir  their  fishinc 
'   ^"id   be  prj: 


ig 


•  "■■"  '•cliovc  our 
L'  oi-dinary  coni- 
existiny  laus  of 
'y  ciuitlcd  free 


t"  the  Sen- 

to  tile  seiz- 

'^    <-^iiiadian 

correspon- 

J  "lust  soon 

't  and  Jion- 


orable    and    tlierefore    satisfactory    to    both    countries  and 
their  inhabitants.'' 

If  uc  look  at  the  correspondence  submitted  by  the  Pres- 
ident on  December  8,  i886,  and  again  on  February  8,  1887, 
we  find  the  treatment  of  our  fisliermen  more  intolerable 
than  ever. 

The  case  of  the  Rattler,  seeking  shelter  from  a  storm  in 
the  harbor  of  Shelburne,  Nova  Scotia,  induced  Mr.  l^ayard 
to  sa\-  to  Mr.  Ilardinge  (August  9,  1886):  "The  hospi- 
tality which  all  civilized  nations  prescribe  has  thus  been 
violated  and  THE  STII'ULATION  OE  A  TREATY  C;R(JSSLV  L\- 
FRACTKD." 

In  the  case  of  the  Shiloh  and  Julia  Ellen,  Mr.  I.-ayard 
(yXugust  18,  1886)  protested  -'against  the  hostile  and  out- 
rageous misbehavior  of  Captain  Ouigley,  of  the  Canadian 
cruiser,  Terror,"  and  said,  "the  firing  of  a  gun  across  their 
bows  was  a  most  unusual  and  wholly  uncalled-for  exhibi- 
tion of  hostility,  and  equally  so  was  the  placing  of  armed 
men  on  board  the  lawful  and  peaceful  craft  of  a  friendly  na- 
tion." although  Ca])tain  Ouigley  gave  another  version  of 
his  acts.  In  the  case  of  the  "  Mollie  Adams,"  whose  water- 
tank  had  been  burst  by  heavy  weather,  and  whose  master 
was  refused  permission  by  tlie  Collector  at  i'ort  .Mulgrave 
to  purchase  two  or  three  barrels  to  hold  water  on  their 
liomcward  vo\'age,  the  vessel  was  compelled  to  put  to  sea 
with  an  insufficient  supi-^ly  of  water,  and  in  tr\-ing  to  make 
another  pcjrt  wherein  to  obt.iin  it,  encountered  a  gale  which 
swept  away  a  deck-load  of  fish  and  two  seine  boats,  and 
Mr.  Bayard  (.September  10,  1S86)  denounced  the  conduct 
of  the  custom  officer  as  "  inhospiiaole  and  inhuman." 

Aj^ain,  Seinember  23,  1886,  .^[r.  15a)'ard  had  to  complain 
of  tlie  treaaiient  of  the  A.  R.  Crittenden,  whose  master 
stop{)ed  at  Steep  Creek  for  water,  and  was  told  b\'  the 
Customs  Officer  that  if  he  took  in  water  his  \'ess  -1  would  be 
seized,  wliereuj)oii  he  sailed  without  the  needed  sn[)p]\',  and 
was  obliged  to  ])ut  his  men  on  a  short  allowance  of  water 
during  the  passage   homeward.      Mr.  Bayard  characterized 


14 


THE   riSIlEKIKS    DISI'UTE. 


this  conduct  as  "  unlawful  and  inhuman,"  and  as  afAirdinj;  *"1 
"  an  illustration  of  tlie  very  vexatious  spirit  in  which  tlie  ^1 
officers  of  the  Dominion  of  Canada  appear  to  seek  and  pe-  ^^! 
nalize  and  ()i)press  those  fishinc,' vessels  of  the  United  States,  *^- 
lawfully  en<;at;cd  in  fishin--,  which  from  any  cause  arc  ^- 
brought  within  their  reach."  oi 

On  November  6,  i886,  Mr.  l^ayard  wrote  to  :\Ir.  Phelps  : 

The  liospiiality  of  Canadian  coasts  and  hailjors.  which  arc  ours  by 
ancient  ri-iit.  and  wliicli  tlicsc  treaties  contirni,  costs  Canada  iiothin"-, 
and  are  productive  of  ad\antagcs  to  iier  ])eople.  N'et,  in  defiance  of 
the  most  solemn  ol)Ii|^ations.  in  utter  disre-aid  of  tlie  facilities  and 
assistances  -ranted  by  the  Tnited  States,  and  \n  a  way  es])ecialiy  irri- 
tating, a  deliberate  i)lan  of  annoyances  and  a;4;4ressions  has  been  insti- 
tuted and  jilainly  exhibited  dtnin;^  tlie  last  fishin;^  season,  a  plan  cal- 
culated to  (hive  these  fishermen  from  shores  where,  without  injury  to 
others,  they  jirosecute  their  own  le;;itimate  and  usefid  industry. 

It  is  impossible  not  to  see  that  if  the  unfriendh-  and  unjust  sys- 
tem, of  which  these  cases  now  presented  are  a  ]r.\v{,  is  suslaineil  by 
Her  Majesty's  (;overnnient.  serious  results  will  almost  necessarily 
ensue,  .<4reat  as  the  desire  of  this  (lovernnient  is  to  maintain  the  re- 
lati(ui-,  of  -r,)d  neighborhood  (49th  Con-ress.  2d  Session,  House  of 
Representatives,  V.k.  Doe.   ly,  p.  iCtoi. 

The  fpiestion  asked  by  ^fr.  lli\-ard  of  .Sir  Lionel  West 
(.May  10,  18S6)  is  still  the  (itiestHMi  before  <'ie  cotmtrv  • 

Whether  sucii  a  construction  is  admissible  as  would  convert  the 
Treaty  of  1.S18,  fr.)m  iiein-an  insirimient.dity  for  the  protection  of  the 
ia-shore  fisheries  almi-  the  described  jiarls  of  il;-  llritish  .\iiiericaii 
coasts.  in>,,)  a  preiexi  or  means  of  obstrurlin-  the  business  of  deep- 
sea  ti--liiii-  liy  (  iiizensof  the  Ciiited  States,  and  of  the  inlerrnptin-  and 
de-trnvii;.^  iIk'  ,-,,mnierci,il  intercoinse  tint  since  the  'I'reaty  of  i.SiS, 
and  iii(lei)en.!eiu  of  aii\-  treal\  whatever,  has  -rown  up  and  now  ex- 
ists uii.ler  the  c.nicuMent  and  friendly  laws  ami  iiiL-rcantile  regulations 
ot  the  respe.-live  couniiirs  (4.1(1  Con-ress.  2d  Session,  House  of 
Kepre-entatives,  ivx.   Doc,  p.  t.j). 

1  he  wide  and  irreconcilable  differences  between  the  view 
of  American  riviits  under  the  Treaty  of  18 1 8  taken  by  Mr. 
iiay.ird,  .Mr.  Phelps,  and  Mr.  Senator  Edmunds,  represent- 


'^^"■'t  '■"  ^vhicl,  the 

'^'^  ^  "'t^'J  States 
"^   '-"'3'  ca.se    a,-e 

'^"  ^"  ^^^'■-  Piiclps  ; 


THE    IISIIHKIKS   DISI'UTK. 


15 


"-^  '-"itic.  and 

"^"■^ '■■■•■''  '"vn'ins.i. 
'""^""'  •■'  P'an  cal- 

"'  "Kliistry. 

'-■  ■""'    ^"UUst  M-.S- 

''  '-^  ■'^"s(,n-„ecl    bv 

'"•""'■'ill   the  re- 
''''""'  House  of 


COUIlt)-y  • 

^         * 

■"'^■^■t"'ii  of  the 

'"^■■'^■^  "'"  (Icq,. 
■'■'■'■"Ptin:^  a,ul 
'V.ilvof  ,,s,fj, 
•'"<'    iiou'  ex- 
'^'  '■^■.^iil.itioiis 
'"•    House   of 


en  by  J\jr. 
'■'^P'eseiit- 


in^  the  Committee  on  Foreij^n  Relations  in  the  Senate,  and 
by  Mr.  Hchuont,  representin;^  the  hkc  Committee  in  the 
House,  and  tlie  view  of  our  rii^iits  under  tliat  treaty  tal-;en 
by  tlie  Canadian  authorities,  and  adopted  or  acquiesced  in 
b)'  tlie  British  Government,  seem  to  show  the  hopelessness 
of  cominy  to  an  aj^reement  under  that  treaty. 

Thk  Decidi:!)  View  of  Secr^jtary  Manxixo. 

The  Secretary  of  the  Treasur)-,  Mr.  Planning,  in  his  very 
able  response  to  the  Committee  on  Foreign  Affairs  in  the 
House  of  Representatives,  dated  Februar)'  6,  iSS/,  on  the 
fisheries  question,  says  (p.  4)  : 

It  is  impossible  not  to  rec(V4nize  liv."  justly  my  C()11c;i,l;"uc,  Mr. 
ISay.ird,  lias  j)ortia\x'(l  ilic  inhumanity  and  brutality  with  which  cer- 
tain Canadian  officials  treated  tlefenceless  American  fishermen  during 
the  last  summer,  e\en  iliorie  who  had  g(jne  out  of  their  was  to  rescue 
Canadian  sailors,  ,ind  haxiu.i;'  entered  a  Canadian  ba\  to  safely  land 
those  tlu'y  had  sa\ed,  attempted  to  procure  food  to  sustain  their  own 
lu'es. 

Mr.  Manning  shows  that  the  "restrictions"  enforced 
by  Canadian  statutes  and  oflicials  against  our  (ishermen, 
uneler  pretence  of  restricting  commercial  privileges,  are,  in 
fact,  in  violation  of  our  tishiiig  rights  ami  of  the  Tre<it>-  of 
1818,  and  he  tells  us  of  .1  itew  Canadian  Act,  approved  by 
the  Otieen  in  Council  on  Xo\-ember  2>>,  iSSG.  entitled  "  An 
Act  ftirther  to  aineitd  the  Acts  re-;[)ecting"  fisheries  by  for- 
eign vessels,"  and  Afr.  Manning  says  : 

TheCanailian  Act  thus  JKuiiv.;  the  royal  appro\al  was  intended, 
as  has  been  openb'  .uow'd,  to  toiieii  an\-  .\merican  ii-,liiu:4  \essel 
whicdi  is  fuind  haxm;.;  entered  Canadian  water.-.,  or  the  port  of  Malifix, 
to  1ju>-  ice,  bait,  oi-  other  articles,  or  toi-  any  puipo-e  other  than  shelter, 
repLiii-,  wdotl,  or  water.  'l"li.it  we  den\".  .\]\i\  I'l'ply  th.U  such  le;.;isla- 
tion  is  a  repeal  and  anmihuenl  by  i;nL;l.iiid  of  the  arran;.;emeni  made 
ill  1S50.  and  to  that  repeal  we  are  entiiletl  to  respoml  by  a  similar  re- 
peal of  our  own  law,  ami  te  a  refusal  hereafter,  and  while  tlebate  or 
negotiation  L^oes  on,  to  c<inler  hos|)itality  or  any  |)ri\ile;^e  whate\er  in 
our  ports  on  Canadian   xessels   or    boats  of  an\  sort.      A   violation  of 


]  \\\ 


l6 


TIIK    FISIIKRIKS    DISPUTi:. 


amity  may  1)C  looked  upon  as  an  unfriendly  art.  bul  not  a  cause  fo 
a  just  war,  Eni^land  may  jud.^e  for  heiself  of  the  nature  and  exlen 
of  the  amity  and  courtesy  she  will  show  to  us.  In  the  jjiesent  case  \\i 
do  not  i)ropose  retaliation  ;  wo  simjjly  respontl— we,  too,  suspend  am 
it)-  and  hospitality. 

TlIH    VlHW    OF   THE    SF.X.VrK    COMMITI'KK. 


anicitti  me  VACts  rcspcctiiit^  nsiicncs  uy  lorcij^u  v'cjsscis,  ap- 
prox'ctl  by  the  Oiiceii  in  Council,  November  26,  1886,  com- 
mented on  by  Secretary  Manning",  and  after  remarking  : 

From  all  this  it  would  seem  that  it  is  the  deliberate  purpose  of  the 
Hiitish  go\ernment  to  leave  it  to  the  individual  discretion  of  each  one 
of  the  numerous  subordinate  mai^istrales,  fishery  olticers,  and  customs 
ot'ticers  of  the  Dominion  of  Canada  to  seize  and  bring  into  port  any 
American  vessels,  whether  fishin;^  or  other,  that  he  finds  within  any 
harbor  in  Canada,  or  hoverin;^  within  Canadian  waters.  The  statute 
does  not  even  exce|)t  that  Canadian  waters  in  which  a  largo  ])art  of  the 
southern  coast  and  the  whole  of  the  western  coast  of  Newfoundland 
they  are  entitled  to  hsh,  to  say  nothing  of  the  vast  extent  of  the  con- 
tinental coast  of  Canada. 

The  Committee  repeats  its  expression  of  the  firm  opinion  tltat  tJiis 
hxhlalion  is  in  Tioht/ii'ii  of  the  Treaty  of  181 8,  ,u  it  frs/u-cts  Anurican 
Jis/iim;  I'rssrls,  anil  in  violation  of  the  principles  of  amity  and  good 
neighborhood  that  ought  to  exist  in  resi)ect  of  commercial  intercourse 
or  the  coming  of  the  vessels  of  either  having  an\'  commercial  character 
within  the  waters  of  the  other.  Mad  it  been  intended  to  harass  and 
embarrass  .\merican  llshing  and  other  vessels,  and  to  make  imjjracli- 
cable  further  to  enjoy  their  treaty  and  other  common  rights,  such  legis- 
lation would  have  been  perfectly  atlapted  to  that  end. 

With  this  iitiiforinity  of  aj^reemcnt  on  tlic  point  that  Great 
Britain  is  deliberately  violating  the  treat}'  of  1S18.  and  with- 
holding the  privileges  to  our  fishermen  in  consideration  of 
which  we  stirrendered  otir  olden  ritihts  and  liberties  in  the 


til 
fd 
ol 
oil 


■';,;'  '^"^  ""t  a  cause  fb 

_'"  "^^- im-sont  case  u, 
"^''  "^^.  suspend  am- 


THE   FISHERIES   DISPUTE. 


17 


)M.MfJ-,-j,;,,_ 

'^J''-''^  of  the  Com- 
f -f^^.  ^cl  Session, 
■;/).  after  a  careful 
Canadian  Jeo-isJa- 
^"  Act  further  to 
•'S-n  vessels,"  ap. 

■'■-^'  J«S6,  coni- 
'■  ''eniark/ng  ; 

■•"^^  purpose  of  the 
:''^''"^"  of  each  one 
'^•<-''s,  and  customs 
■'"•^  '"'o  port  anv 
^'"''■^   ^vithi,,  any 
7"     '^"'>-^  statute 

''  -'^'^' "found land 
^■'^■"tofthe  con- 

'P'uion  t/uzU/nS 

""">■  ^^'h!  good 
^"'■'i  "Kercourse 
■'■'-''■•')  character 
'"  '''"-ass  and 
I'll'^-o  impracti- 
''ts,  such  Je..is- 


t  tJiat  Great 
^'  and  with- 
•-'eration  of 
■ties  h^  xXxQ 


Newfoundland  fisheries,  can  we  consent  with  a  (Xwt  regard 
to  national  fitness  to  any  further  delays  ?  Is  there  any  good 
reason  why  wc  should  not  notify  Groat  Britain  that  unless 
our  rights  under  the  treaty,  as  wc  understand  them,  are  at 
once  recognized  and  permanently  protected,  we  propose  to 
abrogate  the  first  article  of  the  Treaty  of  1818,  as  for  a  sim- 
ilar reason — non-perfui  luance  of  contract — we  terminated 
in  the  last  century  out  treaties  with  France. 

Adrogation    of    Treath'.s    for    Violation    of  Con- 
tract. 

On  July  I,  1798,  Congress  annulled  by  act  the  trea- 
ties with  France  made  in  1778,  stating  among  the  reasons 
for  tiic  act,  that  these  treaties  liad  been  repeatedly  violated 
on  the  part  of  the  French  Government  ;  that  the  just  claims 
of  the  United  States  for  reparation  of  the  injuries  so  com- 
mitted have  been  refused,  and  that  there  was  still  pursued 
against  the  United  States  a  system  of  prevailing  violence 
infracting  the  said  treaties  and  hostile  to  the  rights  of  a 
free  and  independent  nation  (l  U.  S.  Stat.,  i.,  578  ;  Whar- 
ton's International  Law  Digest,  137  a). 

The  act  was  sustained  by  the  American  envoys,  Messrs. 
Ellsworth,  Davie,  and  Murray,  in  a  letter  to  the  French  en- 
voys, July  23,  iSoo,  on  the  ground  of  prior  violation  by 
France. 

It  was  remarked  that  treaties  being  a  mutual  compact,  a  palpa- 
a1)lc  violation  of  it  by  one  party  did,  by  the  law  of  nature  and  of  na- 
tions, leave  it  optional  with  the  otiier  to  renounce  and  declare  the  same 
to  be  no  longer  obligatory  ;  and  that  of  necessity  there  being  no  com- 
mon tril)unal  to  which  they  could  appeal,  the  remaining  party  must 
decide  whether  there  had  been  such  violation  on  the  other  part  as  to 
justify  renunciation. 

To  the  further  suggestion  that  the  laws  of  nations  ad- 
mitted of  a  dissolution  of  treaties  only  by  mutual  con- 
sent or  war,  it  was  remarked  by  the  American  envoys 
that   Vattel   in  particular,   the   best   approved   of  modern 


I 


I8 


THE   FISHERIES   DISPUTE. 


writers,  not  only  held  that  a  treaty  violated  by  one  party 
niit,'ht  for  that  reason  be  renounced  by  the  other,  but  tliat 
when  there  were  two  treaties  between  the  same  parties, 
one  might  be  rendered  void  in  that  way,  and  the  other  re- 
main in  force. 

Mr.  Madison  wrote  to  Mr.  Edmund  Pendleton,  January 
2,  1791  (I.  Madison's  Works,  524)  : 

Tlint  tlic  contracting  power  can  annul  the  treaty  cannot  I  pre- 
sume he  questioned,  the  same  auihoiily  precisely  being  exercised  in 
annulHng,  as  in  making  a  treaty. 

y/zd/  (I  breach  on  one  siife  [ei'm  of  n  sin^^/r  article,  each  being  con- 
sidered as  a  condition  of  e\ery  oilier  article)  iiisc/targes  the  other,  is 
as  little  questionable,  Ijut  with  this  reservation  that  the  other  side  is  at 
liberty  to  take  advantage  or  not  of  the  breach,  as  dissolving  the 
treaty.     .     .     . 

It  is,  of  course,  desirable  that  whatever  disposition  is 
made  of  the  Fisheries  Convention  of  1818,  which  has  so  long 
been  a  source  of  trouble,  should  be  made  by  mutual  consent, 
and  that  with  its  departure  the  international  differences 
should  cease.  ]kit  if  Great  liritain,  under  whatever  influence, 
should  refuse  her  assent  to  this,  and  if  our  Government  is 
satisfied  not  only  that  we  arc  entitled  to  abrogate  the  treaty, 
but  that  the  rights  of  our  citizens  and  the  national  dignity 
demand  its  abrogation,  a  review  of  historic  facts  and  of  the 
law  of  nations  applicable  to  the  Treaty  of  1783,  and  of  the 
opinions  of  learned  crown  lawyers  of  Great  Britain  and  of 
distinguished  jurists  'n\  the  United  States,  all  seem  to  unite  in 
showing  that  the  abrogation  of  the  first  article  of  the  Treaty 
of  1818  would  revive  in  full  force  the  third  article  of  the 
Treaty  of  Peace  in  1783.  The  article  which  would  be  thus 
restored  is  as  follows : 

ARTicr.K   III. 

It  is  agreed  that  the  people  of  the  United  States  shall  continue  to 
enjoy  unmolested  the  right  to  take  fish  of  every  kind  on  the  sand  bank 
and  all  the  other  banks  of  Newfoundland,  also  in  the  Cudf  of  St.  Law- 
rence, and  at  all  other  places  in  the  sea,  where  the  inhabitants  of  both 
countries  used  at  anv  time  heretofore  to  fish. 


cil 
lal 
tl| 
lul 

b 


rE. 


THE    FFSIIKRIF.S   DISPUTE. 


•;^^d  by  one  party 
■'"-'  otlier,  but  that 

tJie  same  parties 

'TKl  the  othe 


IQ 


r  re- 


endleton,  Ja„t,ary 


■cafy  cannot   I   prp. 
■  'J^'i'ig  exercised  in 

'!'''  '^''<^''  being  con- 

'"K^'-s  (he  ot/u-r,  is 

"'e  other  side  is  at 

''s  dissolving  the 


•"  disposition  is 
'"'ch  has  so  long 
^i"tiia]  consent, 
"-'1   differences 
Jever  influence, 
government  is 
■ate  the  treaty, 
itional  dignity 
cts  and  of  tlie 
'3,  and  of  the 
''■'tain  and  of 
em  to  unite  in 
of  tlie  Treaty 
"■^'c'e  of  the 
oi'Id  be  thus 


"  continue  to 
''e  sand  bank 
""ofSt.  J.aw- 
'tantsofboth 


And  also  that  the  inhabitants  of  the  I'nited  States  shall  have  lib- 
erty to  tak'c  lish  of  e\-ery  kind  on  such  part  of  the  coast  of  New  foimd- 
huul  as  llritish  tiilicrn\en  shall  use  (but  not  to  ilr\'  or  cure  tlie  same  on 
that  inland),  and  also  kw  the  coasts,  liays,  and  creeks  of  all  otliei'  of 
his  r.ritannic  Majesty's  Dondnions  in  America  ;  ami  that  tiic  American 
fishermen  shall  liavc  liberty  to  dry  and  cure  fish  in  any  of  the  unsettled 
bays,  liarbors,  and  creeks  of  Nova  Scotia,  Magdalen  Islands,  and  Lab- 
rador, so  long  as  the  same  shall  remain  unsettled  ;  hut  so  s(;on  as  the 
same  or  either  of  them  shall  be  seltletl,  it  shall  not  be  lawful  for  tlie 
said  tishermen  to  dry  or  cure  lish  at  such  settlements  without  a  previ- 
ous agreement  for  that  pui'pose  with  the  iidiabilanis,  proprietors,  or 
possessors  of  the  land. 


The  Newfoundlaxi)   Fisheries  in  European  and 
American  History. 

Before  passing  to  the  unsuccessful  attempt  of  the  llritish 
Commissioners  at  Cihent,  at  the  close  of  the  War  of  1812,  to 
persuade  the  American  Commissioners  that  the  fisheries 
article  had  been  abrogated  by  the  war,  and  to  their  greater 
success  in  London  in  l8i8,whcn  Messrs.  Rtish  and  Callatin 
\-oluntarily  surrendered  our  olden  rights  and  consented  to 
the  conditions  under  which  otir  fishermen  are  now  so  ill- 
treated,  it  may  be  well  to  recall  some  of  the  principal  in- 
cidents that  preceded  and  attended  the  Treaty  of  I'eace, 
and  which  explain  the  regard  shown  by  the  old  Congress  to 
the;  value  of  the  fisheries,  and  the  rights  of  the  fishermen  : 
and  the  difficulties  which  had  to  be  overcome  by  the  Ameri- 
can Commissioners  to  Paris  before  they  could  secure  for  the 
young  republic  the  rights  and  liberties  guaranteed  by  Arti- 
cle III.,  and  which  by  the  Treaty  of  1818  were  needlessly 
surrendered. 

Senator  Edmunds  remarked,  in  the  North  American  Re- 
ivciv,  that  "  no  permanent  gain  for  American  interests  has 
been  made  since  the  Treaty  of  1783."  /\s  regards  our  fish- 
ermen, were  the  technical  reasoning  of  our  Canadian  neigh- 
bors to  be  accepted  as  correct,  it  mii;hl  be  said  that  Ameri- 
can diplomacy  had  stripped  them  of  their  riyht  to  decent 


20 


THE   FISIIFKIFS   DISI'L'TK. 


and  Iiospitabic  treatment  conferrcil  by  the  law  of  God,  and 
reco^Miizcd  as  sacred  by  the  law  of  nations. 

The  history  of  the  Newfoundland  fisheries,  of  whieh  an 
interestin;:,^  sketch  is  t;iven  in  the  learned  report  of  the  late 
Lorenzo  Sabine,  of  Massachusetts,  submitted  by  the  Hon. 
Thomas  Corwin,  Secretary  of  the  Treasury  in  1S53,  throws 
light  not  only  upon  the  estimate  of  their  importance  by  the 
American  Congress,  but  by  the  courts  of  ICngland,  of 
France,  and  of  Spain. 

The  Newfoundland  fisheries  were  known  to  the  liis- 
cayans  and  Normans  in  1504,  and  in  I  5  17  fifty  :liips  of  dif- 
ferent nations  were  engaged  in  them.  In  1577,  the  l'"reiich 
employed  one  hundred  and  fifty  vessels,  and  by  llenr\-  IV., 
and  his  great  Minister  SuII)',  the  Newl'omidland  codfishcry 
was  placed  under  the  care  of  the  government,  and  to  her 
fisheries  France  was  indebted  for  her  possession';  in  Amer- 
ica. 

The  first  difficulties  from  rival  grants  of  land  b\'  ['ranee 
and  F:ngland  occurred  in  Arcadia,  which  embraced  the  jjres- 
ent    colonies    of   Nova    Scotia,    and    New    ]5runswick    and 
Maine,   between   the  Kennebec  and  the  St.  Croix    Rivers. 
These  were  limited  by  the  Treat\-  of  St.  (Germain  in  16S3, 
by  which   Charles  I.,  who  had   married    a  French  princess, 
resigned  certain   places,  whose  cession  was  afterward  held 
to   be    fraudulent   by  Cromwell,  who  erected    Nova  Scotia 
into  a  colony,  and  after  the   restoration  of  the  Stuarts,  by 
the  Treaty  of  Breda  in    1G67,  it  passed  a  second  time  to 
France.      A  third  treaty,  that  of  London  in  1686,  confirmed 
the  two  powers  in  their  respective  colonies.      On  the  proc- 
lamation of  war  between  England  and  France  on  the  acces- 
sion of  William  and  Mary,  Massachusetts  commenced  prep- 
arations   for   the    conquest   of   Nova    Scotia    and   Canada, 
under  Sir  William  Phipps  ;  and  at  the  peace  of  Ryswick,  in 
1697,  Nova  Scotia  was  again  returned  to  the  ]'\ench,  who 
promulgated  a  claim  to  the  sole  ownership  of  the  fisheries, 
Villabon,  Governor  of  Nova  Scotia,  notified  the  Governor 
of  Massachusetts  of  royal  instructions  from  France  to  seize 


TIIIC    FISIIF.RIKS    niSriTK. 


21 


every  American  fisherman  who  ventured  cast  of  llio  Kenne- 
bec River  into  Maine,  an<l  llie  historian  writes,  "  On  both 
sides  the  strife  was  for  the  monopoly  and  for  tlie  mastery." 
In  1699  came  to  Hoston  the   l^arl  of  Hellamoiit.      In  the 
first  year  of  (Jiieen   Anne,  the   two   nations  were   aL;ain  at 
war,  ami  amon'^  the  causes  were  the  claims  of  l-'rance  to   a 
part  of  IMaine  and    the  whole  of  the  fishing-   grounds.     The 
people  of  New  l':np,laiul  enL;a[;cd  heartily  in  the  conte-t  and 
equipped  a  licet   at  Boston  ;  and  alter  a  doidjtful  struy^le 
in  1710  Nova  Scotia  became  an   English  province,  and  the 
Home    Ministry    attempted    the    conquest    of    Canada,    a 
scheme   desis^ned   by    Bolint^dMoke   and    mismana-ed   by  a 
Commander  Uili,  who,  with  troops  fresh  fr  uu  the  victories 
of  Marlborou-h.  aided  by  trained  colonists  of  ^'ew  Iln-land, 
lost  In-  wreck  in  the   passage  up  the   St.  Lawrence  eight 
ships  and  more  than  eight  hundred  nun. 

By  the  Treat,    oi  Utrecht,  in  1713,  I'.ngland  obtained  the 
supremacy  and  monopoly  of  the  fiTieries  of  our   seas,  and 
the  Tory  statesmen,  headed  by  ( )xford  and  Holingbroke,  safe 
from  fo'reign  danger^,  ciuarrellcd   among  themselves.      O.K- 
ford  was  impeached  for  high  treason  b>-  the  House  of  Com- 
mons and  committed  to  the  Tcnver,  and  auKMig  tlie  charges 
against  him  was  that  Robert  l-.arl  of  Oxford  and   Ivul  Men- 
timer  had  in  defiance  of  an  act  of  Parliament  advised  their 
Sovereign   that   "the  subjects  of  France  should    have   the 
liberty  of  fishing  and  drying  fish  in  Newfoundland."'     "But 
such,"  wrote  the  historian,  "  has  been  the  advance  of  civili- 
zation, and  of  the  doctrine  of  human  brothcrhootl,  that  an 
act  which  was  a  fhigrant  crime  in  his  own  age  has  become 
one  honorable  to  his  menuuy.     The  great  principle  he  thus 
maintained  in  disgrace,  that  the  seas  of  British  America  are 
not  to  be  held  bN"  British  subjects  as  a  monoply,  and  to  the 
exclusion  of  all  other  people,  has  never  since   been  wholly 
disregarded  by  any  Ib-itish  Minister,  and  we  may  hope  will 
eveiMunv  api)car  in  British  diplomacy  to  mark  the  progress 
of  liberal  principles  and  of  man's  humanity  to   man."  ^ 

The  French,  undismayed  by  the  loss  of  Nova  Scotia, 


Il(f' 


22 


T"E   FISHERIHS  DISPUTE. 


^"  J/ 45  I '110 land  anri  t? 

'"'• -"111   IVppcxn    i„-  1        ■  """"i-indcr  ^„,-.- 

Tlliitv  >.e-,„  I  f"''  "'"'"■  «'■"'  car.,o  '      f        "  "•'''"S' 

'■•-■"lari-s  -\r,.    o ',  .        "  '-"nJitioii  of  Can,-   1!     » 

„,.,"".•-     tl.e  „,„,(  »„  '    ""-  co,H,„est  of 

la„.t..,:.^^-    ■""'"'"'- Un!ve,- a,  ,';,:;"'"""  "^  ""-■ 

''"•-•-=u.H.,o,,o,.a;;,^tKiS;;:;;'^1'"''^''''->'ce,. 

at  Jiome  and  in  he,- 


r-i 


TE. 

"  1721  their  fleet  of 
'^d  said  to  be  quite 

^in  at  war,  and  the 
'  -'I'Hl  Louhbourcr 
point  of  attack!' 
'^'■cs  had  been  re- 
'  ^'I'lKlred  cannon 
^^''i-^    its    strengtli 
^'^•'     It  had  nun- 
"I^^iat  sncJ,  a  cit)- 
'^cy  of  American 
'"  '-S  alone  found 
I^^e  tieet  sailed 
'■■^  -'"d  the  ro\-al 

"^'"<-%niaintained 
'>iisand  cannon- 
'^  ^y  the  assail- 
-tl  and  exj^osed 
<-t  on  the  forty- 
nander  snrren- 

-''  ^'-'s-  n^-ing, 

^'  S:i-cat  value. 
^  '■"  the  House 
^eal,  courao-e 
d." 

ton  in  view  '' 
^  "'^'  Jiold  in 
^  of  the  real, 
conquest  of 
'"cnt  of  the 
^  ^ '  "^  i;/A^r. 
'  ^'"tl  trans- 
!an  equiva- 
lent.' " 
-Ji  lias  been 
md  in  her 


THE    I'lSlIERIES   DISPUTE. 


23 


colonics,  Cape  Breton  was  restored  to  France,  and  among 
the  results  of  that  peace  was  counted  the  alienation  of  the 
affection  of  the  people  of  New  lCnc;land,  who  felt  that  the 
House  of  IIano\'er,  like  the  Stuarts,  were  ready  to  sacrifice 
their  victories  and  their  interests  as  "  eciuivalents  "  for  de- 
feats and  disasters  in   I'-urope. 

In  1756  came  another  war  between  Great  liritain  and 
I'"rance,  and  two  }-ears  later  the  second  siege  ofLouisbourg 
b}'  twenty  ships  of  the  line,  eighteen  frigates,  a  fleet  of  smaller 
vessels,  and  an  army  of  fouitecn  thousand  men.  The  suc- 
cess of  this  expedition,  in  wh.ich  Wolfe  commandcil  a  corps, 
caused  great  rejoicings  in  iMigland,  and  the  l'"rencli  colony 
were  deposited  at  St.  Paul's.  In  this  last  w.ir  Americans 
bore  a  distingui-^hed  part,  and  it  was  said  in  the  llouse  of 
Commons  that  of  the  seamen  employed  in  the  British  navy 
ten  thousanil  were  natix'cs  of  America.  Among  the  promi- 
nent actors  were  many  who  became  prominent  in  our  revo- 
lution. With  Pepperell  at  Louisbourg  were  Thornton,  a 
signer  of  the  Declaration  of  Independence  ;  Bradford, 
Gridley,  who  laid  out  the  works  on  Bunker  1  lill  ;  and  on  the 
frontiers  of  Virginia  and  in  the  West  was  Washingtt)n.  l"-n- 
gaged  in  one  or  other  of  the  I'^rcncli  Wars  were  Scars,  Wol- 
cott,  W'illiams,  and  I.i\ii:gston,  all  among  the  signers  ;  I'rcs- 
cott,  Montgomery,  Gates,  Mercer,  Morgan,  Thoina-^,  James 
Clinton  (i\\c  father  of  DcWitt  Clinton),  Stark,  Spencer,  the 
Putnams,  Nixon,  St.  Claii-,  tiibson.  Bull,  Durke,  Butler, 
Campbell,  and  Chief  Justice  l)}'er  of  (.'onnecticut.  It  was, 
says  S  'bine,  in  Nova  Scotia  and  Canada  and  Ohio,  at  Port 
Royal,  Causeam,  Louisbourg,  Ouebec,  and  in  the  wilds  of 
Virginia,  that  our  fathers  acquired  the  skill  and  experience 
necessary  for  the  successful  assertion  of  our  rights. 

By  the  Treaty  of  Paris  in  lyf)^,  w'aen  Canada  and  its 
dependencies  wrre  (ormally  ceiled  10  (ireat  Ihitain,  Prance 
received  the  right  of  fishing  ami  drx'ing  on  the  coast  o{ 
Newfoimdl  I'ld,  as  pro\ided  b)-  the  Treaty  of  Utrecht,  but 
at  a  distance  of  fifteen  leagues  from  Cijie  J}reton — a  con- 
cession which  w>is  \ie\\  ed  with  great  displeasure  in  Pngland, 


M 


24 


THE   FISHERIES   DISPUTli. 


where  it  was  said  that  "  the  fislierics  were  worth  more  than 
all  Canada." 

When  in  1778  a  treaty  of  commerce  was  made  between 
the  United  States  and  France,  it  was  provided  by  articles 
IX.  and  X.  that  neither  par^y  sliould  interfere  witli  the 
fishing  riyhts  enjoyed  by  the  other,  a  provision  which  seems 
to  have  been  forgotten  by  France  wlien,  in  April,  1779,  she 
secretly  agreed  with  Spain  that  if  she  could  drive  the  British 
from  Newfoundland  the  fisheries  should  be  shared  only  with 
Spain. 

The  Old  Congress  o\  the  Fisheries. 
The  historic  and  memorable  part  born  by  the  American 
colonists  in  securing  for  Great  Ihitain  the  Newfoundland 
fisheries,  added  to  their  importance  to  the  colonies  them- 
selves, naturally  led  to  a  ju^t  appreciation  of  their  value 

On  October  22,  1778,  Congress  adopted  a  plan  which  is 
referred  to  in  the  instructions  given  to  iM-anklin  "for  re- 
ducing the  Province  of  Canada,"  and  the  first  reason  niven 
for  declaring  the  reduction  of  Halifax  and   Ouebec  objects 
of  the  lughest  importance,  was  that  "the  fishery  of  New- 
foundland  is  justly  con^-idered  as  the  ba^is  of  a  ^ood  M-^ 
rine  "  (11.  Secret  Journal   of  Congress,  1  14^      OirMay    v 
1779.  It  was  recorded,  on  motion  of  Air.  B„,ke,  sec<-,nded  by 
Mr.  Douglas,  "  that    in   no  case  by  anv  Treatv  of  Peace  the 
common  right  of  fishing  be  given  up  ;  "  and  on  June  24   ,770 
they  voted,  "that  it   is   essential   to  the   welfare  of  all   the 
United  States  tliat  the  inhabitants  thereof,  at  the  expiration 
of    the   war,  should   continue   to   enjny  the   free  and    undis- 
turbed exerc.se  of  their  common  right  to  fish  on  the  b  inks 
of  Newfoundland  and  the  other  fishing  banks  ;,nd  seas  of 
North  America"  (Do.,  p.  184). 

The  earnestness  of  Congress  in   this  view  appears  from 
a  further  resolution,  July  ,st,  for  an  explnnatorv  note  .0  the 
Minister  at   the  Court  of  Versailles,  whereby  such  common 
right  shall   be  more  explicitly  guaranteed.      On  }ulv  17th 
touching  the  treaty  with  England,  and  on  July  2(3,  1V79  in 


THE    FISHERIES   DISPUTE. 


25 


a  resolution  of  which  the  spirit  will  be  approved  by  our 
harried  fishermen  of  to-day,  on  motion  of  Mr.  INIcKean,  sec- 
onded by  Mr.  Huntington,  it  was  resolved,  that  if  after  a 
treaty  of  peace  with  Great  Britain  she  shall  molest  the  citi- 
zens or  inhabitants  of  any  of  the  United  .States  in  taking- 
fish  on  the  banks  and  places  described  in  the  resolutions 
passed  on  the  22d  day  of  July  incident,  such  molesta- 
tion (being  in  the  opinion  of  Congress  a  direct  violation  and 
breach  of  the  peace)  ehall  be  a  common  cause  of  the  said 
States,  and  the  force  of  the  Union  be  exerted  to  obti.in  re- 
dress for  the  parties  injured. 

Elaborate  reports  on  the  common  right  of  the  States  to 
the  fisheries,  on  January  8,  and  August  16,  1782  till. 
Secret  Journal  of  Congress,  pp.  151,  161  1,  show  how  thor- 
oughly the  subject  had  been  studied. 

As  regards  its  instructions  Congress,  under  the  influence 
of  M.  Gerard  and  M.  dc  la  Luzerne,  the  jMench  ?»Iini-,ter  at 
Philadelphia,  took  a  lower  tone  when,  on  June  15.  1781, 
it  gave  to  its  peace  commissioners  the  humilialiiig  and  in- 
credible instruction,  which  Madison  denounced  as  '•  a  sac- 
rifice of  the  national  dignity,"  to  undertake  nothing  in  the 
ncotiations  for  peace  or  truce  without  the  knowledge  and 
concurrence  of  the  Ministers  of  the  fving  oflMance,  "  and 
ultimatelv  to  govern  )'ourscl\'e^,  by  their  ad\-ice  and  opin- 
ion "  (X.  Diplomatic  Correspondence,  75,  76). 

While  no  satisfactory  exi)lanation  has  been  given  for 
the  adoption  by  Congress  i)f  this  instruction,  the  reasons 
for  its  being  urged  by  the  Court  of  France  have  been  re- 
cently made  quite  clear  b\-  the  valuable  confidential  cor- 
respondence of  the  Count  dc  Vergcnnes  with  his  agents  at 
Madrid,  Philadelphia,  and  London,  published  in  part  by 
the  Count  de  Circourt,  ami  more  largely  comprised  in  the 
invaluable  collection  of  papers  relating  to  the  peace  negoti- 
ations made  by  Mr.  B.  F.  Stevens,  and  now  awaiting  in 
the  State    Department   at   Washington    the   action    of   the 

Government. 

M.  de  CircGurt's  third  volume  and  the   recent"  Life  of 


m 

it"' 


26 


THE   FISHERIES  DISPUTE. 


Lord  Shelburne,"  by  his  grandson  Lord  Edniond  Fitzmaurice 
a  brother  of  Lord  Lansdowne,  the  Governor-General  of 
Canada,  both  pubHshed  in  1876,  the  first  at  Paris  and  the 
second  ,n  London,  shou-  precisely  the  position  occupied  by 
each  of  these  three  powers,  Great  Britain,  France,  and 
bpa.n,  in  opposition  to  the  American  claims  to  the  fisheries. 

The  Opposition  ok  England.  France,  and  Spain. 

England's  hostile  position  on  the  fisheries  was  defined  by 

he  announcement  of  the  Shelburne  Ministry  to  Mr.  Oswald. 

that      the  hm,t  of  Canada  would,  under  no  circumstances,  be 

made  narrower  than  under  the  Parliament  of  1763,  and  that 

he  nght  of  drying  fish  on  the  shores  of  XewfoundlLnd  co  Jld 

When  Fiance,  by  the  Treaty  of  Madrid,  April  12,  1770 
.nduced  Spa.n  tojoin  in  the  war  against  Great  Britain,  ll.; 
reluctance  of  Spain  to  assist  in  the  independence  of  revolted 
colonies,  whose  power  and  influence  she  hated  and  feared 
was    overcome  by  an    agreement  on  the   part  of  France' 
with  small  regard  to  the  interests  of  the  United  States  or  to 

BHti^rT  °;^'^^'7!  -'^J>  the  Republic,  first,  that  if  the 
iM.t.sh  should  be  driven  from  Newfoundland  its  fisher- 
ies were  to  be  shared  only  with  Spain  ;.  nd  second;  that 
Spam  should  be  left  free  to  exact,  as  the  price  of  her  alliance 
m  the  war,  a  renunciation  of  every  part  of  the  basin  of  the 
St.  Lawrence  and  the  lakes,  and  the  navigation  of  the  Mis- 
sissippi, .^d  of  all  the  land  between  that  nver  and  the  A  1  - 
ghan.es  (X.  Bancroft,  190,  quoting  authorities) 

In   pursuance   of  that  agreement,  and    with  a  view  to 
achtate  the  designs  of  Spain   against   America  to  which 

elabo.ate  instructions  to  his  diplomatic  agents  in  America 
H^ht'^'n!"^';""  "•^"""'  "'  '"  I-cellency  against  on; 
trast  to  the  view  held  by  our  own  Commissioners,  and  which 


L 


THE    FISHERIES  DISPUTE. 


27 


as  the  treaty  shows,  was,  in  that  solemn  instrument,  recog- 
nized and  adopted  by  the  British  Government.  lie  saitl  in 
a  letter  to  M.  de  la  Luzerne,  the  French  Minister  at  Phila- 
delphia, dated  Versailles,  September  25,  1777  : 

It  is  essential  to  remark  that  the  lishcrios  belong,  and  have  always 
belonged,  to  the  Crown  of  (ireat  liritain,  and  that  it  was  as  siilijeets  of 
the  Crown  the  Americans  enjnvcd  them — consctiuenth-.  finm  tlie  mo- 
ment when  they  shook  off  the  English  yoke  and  declared  themselves 
indcpendiMit,  the\-  broke  tlie  comnumity  which  existed  between  them 
and  the  metropolis  ;  and  \olinil:irily  relintjrished  all  the  atlvantages 
which  they  derived  from  that  connnnnity,  Just  as  tlu-y  despoiled  Eng- 
land of  all  the  advantages  she  deri^■ed  from  llieir  union  with  her. 

This  is  virtually  the  same  argument  held  by  Lord 
Bathurst  in  his  correspondence  with  Air.  John  Ouincy 
Adams,  and  by  the  hjiglish  Commissioners  at  Ghent,  that 
"  when  the  Americans  by  their  separation  from  Great 
Britain  became  released  from  the  duties,  they  became  ex- 
cluded also  from  the  privileges  of  Jhiiish  subjects." 

It  should  therefore,  argued  the  (..'ou.nt  de  X'ergenncs,  be  well  estab- 
lished that  from  the  moment  when  the  colonies  published  their  Dec- 
laration of  Independence  they  have  ce;.sed  to  <iwii  a  share  in  the 
fisheries,  because  they  have  forfeited  l)y  their  own  act  the  qualifica- 
tion which  eiUitled  tliem  to  such  a  shaie  ;  that  conse([uenily  they  can 
offer  to  the  court  of  '  ondon  neither  title  nor  actual  possession,  from 
this  comes  another  result,  viz..  that  the  Americans  having  no  right  to 
the  fishing  we  can  give  them  no  guarantee  on  that  head  (III.  de  Cir- 
court,  pp.  276,  277). 


This  argument  conx'eniently  accords  with  the  suggestion 
which  closes  the  remarkable  memoir  on  the  principal  ob- 
ject of  negotiation  for  peace  given  by  M.  de  Circourt  TIL, 
pp.  29,  38)  from  the  iMcnch  archives,  that  it  would  be  for 
the  interest  of  I'Jigland  to  ha\-e  the  French  as  companions 
at  Newfoundland  rather  than  the  Americans,  and  agrees 
with  the  strong  opinion  presented  to  Lords  Shelburne  and 
Grantham  by  M.  Reyneval,  during  his  secret  visit  to  luig- 


28 


THE    FISFIEKIKS   DISPUTE 


land  m  September,  i;S2,  aj^ainst  our  ri^ht  to  the  fisheries 
(.111.  blielbiirncs  Life,  p.  263). 

There  would  liave  been  more  force  in  the  Count's  ar-u- 
nient  had  he  succeeded  in  Ins  attempt  to  induce  the  Americ^'an 
Comm.ss.oncrs  to  negotiate  under  the   first  commission  to 
,  ';<     '''p     '  ^"'^'^--i^i'^^r  him  to  treat  with  representatives 
ot      the  rinrteen  Coh.nies  or  phmtations."   Tlie  Count  then 
argued  against  an  ackuou  lodgment  of  our  independence  in 
advance    of  the    treaty   wl^ieh    would    concede   it,  on   the 
ground  that  "  it  uould  not  be  reasonable  to  expect  the  ef- 
^     befin-e  the   cause,"  and  he  told  the   Enghsh    Minister 
I  it.Iierbert    that     the    connni.sion    would    do.        Had     the 
American    Commissioners    adopted    that    advice    and    con- 
sentedto  treat  under  that  designation,  their  consent  might 

^ntan    to   I  er  colomes   m    revolt,   of  the    fisheries    or    the 
boundanes.  had  been  given  and  accepted  as  a  concession. 

1  ne  Count  s  advice,  tliough  concurred  in  bv  Dr.  iM-ank- 
^-^,  struck  Jay  as  singular,  and  the  refusal  of'jay  to  treat 
except  on  an  e.ual   ^.oting  stayed  for  some  sii  weeks^  U^ 

mi3::rof  v'^  r^'^'^r'^  ''■■  -  ^^'--'  ^--'  "-^^  ^' 

n   ss     n  of  Vaughan    and   the   considerations   of  which    he 
a.  the  bearer,_convu,ced  the   liritish  Cabinet  and  brouoht 
U  e  neu-  CcH,nn,<sion  to  O.wald.  to  treat  with  -  The  Unil^d 
Mates   of   A.ner.ca  "    ^  J-.^y    to    Secretarv   Li-.ingston     N 
vcmber   17,    ,782,   VIII.   Diplon..    Corresp      pp'^  ,'-'  m 
300).     Then  the  negotiations  comn.enced^Lt      en  thL  \t 
HK  ependent  and  equal  powers,  and  this  fact  enable     John 
Admns  to  say.  nearly  forty  years  afterward  -in   a  Htd     o 

^^^lIK.m  bonus,  dated  August  ro,  1822,  in  a  pitl™^ 
s.on  wh.ch  contains  a  world  of  thought  and  of  i,  „'  n  " 
and  winch  should  be  borne  in  mind  bv  the  statesnuMr^^  S 
countries  n,  considering  the  fishery  question  :  "V;^  :^ 
saered  hat  treaty  as  A  Div.s.ox  OK  thk  K^,P,K  Qnr 
independence,  our  rights  to  territory  and  to  .1,  w  • 

pract,,ed  be.,,.  .„e  RevoUuio,,,  .^::o  11^:':;:-^ 
Bnta,„  to  „s  tluu,  tl.  featy  .as  a  ,,-..„.  fro,,,  u.  o"f  Ca'.ad"" 


i 


THE    FISHERIES   DISPUTE.  29 

Nov'u  Scotia,  Eiif^Iand,  Scotland,  and  Ireland  to  the  I'ritons. 
T'.ie  treaty  was  nothing  more  than  mutual  acknf)\vlcdg- 
n-ent  of  antecedent  rights"  (August  10,  1882,  X.  Adams' 
Works,  404). 

It  was  fitly  called  by  the  English  judge  "  A  Treaty  of 
Separation." 

The  Fisheries  Clause  a  Condition  of  the  Peace. 

Vangiian's  Mission  to  Sliel'ournc. 

The  sketches  afifordcd  by  the  official  correspondence  of 
our  Commissioners  for  Peace,  and  by  the  diary  of  Mr.  Ad- 
ams, and  the  new  and  most  important  light  thrown  upon 
the  whole  subject  by  the  confidential  documents  from  the 
French  Archives,  and  by  the  interesting  disclosures  in  the 
Life  of  Lord  Shelburne  all  confirm  th;s  view. 

To  the  latter  work  we  are  indebted  for  the  most  exact 
information  we  have  yet  had  of  the  attempt  of  M.  de  Ray- 
neval  in  this  secret  mission  to  engage  the  support  of  Great 
Britain  to  the  French  and  Spanish  scheme,  in  which  those 
courts  united  at  the  date  of  their  treaty.  April,  1779,  to  de- 
prive the  United  States  of  the  fisheries,  and  so  to  cripple 
her  boundaries  and  resources  as  to  confine  her  to  a  narrow 
strip  along  the  Atlantic,  as  shown  in  the  map  "  of  North 
America,  showing  the  Boundaries  of  the  United  States, 
Canada,  and  the  Spanish  Possessions,  according  to  the  pro- 
posal of  the  Court  of  France,  in  1S82  "  (III.  Shelburne's 
Life,  p.  170).  Their  limits,  according  to  the  secret  memoir 
given  by  de  Circourt  (^11 1.,  pp.  34,  38),  were  to  be  detailed 
and  "  circumscribed  with  the  greatest  exactness,  and  all  the 
belligerent  powers  (especially  England,  France,  and  Spain) 
must  bind  themselves  to  prevent  any  transgression  of  them." 

To  Lord  Edmond  Fitzmaurice,  the  grandson  and  biog- 
rapher of  Lord  Shelburne,  we  are  also  indebted  for  the  first 
account  of  the  full  effect  of  the  secret  mission  of  Mr.  Ben- 
jamin Vaughan,  who  had  been  promptly  despatched  by  Jay 
to  counteract  the  unfriendly  design  of  the  French  envoy, 


L 


w 


30  THE    FISHERIES   DISPUTE.   . 

and  apart  from  its  general  interest  as  showing  the  complete 
success  of  Vaughan's  mission  in  deciding  the  policy  of  the 
British  cabinet  in  favor  of  the  United  States,  and  in  over- 
throwing at  a  blow  the  scheme  for  the  permanent  enfeeble- 
ment  of  the  new  Republic,  in  which  France  and  Spain  had 
been  for  years  united,  and  to  accomplish  which  their  ablest 
diplomatists  were  engaged  in  Madrid  and  Paris,  at  Phila- 
delphia and  London,  it  has  a  direct  bearing  on  the  fisheries 
question  of  to-day,  in  showing  that  the  British  cabinet  then 
adopted  their  new  policy  of  conciliation  with  a  complete 
advisement  that  without  a  recognition  of  our  right  to  the 
fisheries  no  peace  was  possible.  Tlie  considerations  sub- 
mitted by  Mr.  Vaughan  to  Lord  Shelburne  (VIIL  Diplomatic 
Correspondence,  pp.  165,  1681  as  worthy  of  attention  if 
England  expected  other  advantages  from  peace  than  a  mere 
suspension  of  hostilities,  if  she  looked  forward  to  cordiality, 
contklence,  and  commerce,  after  toucliing  upon  the  impor- 
tance of  treating  with  us  on  an  ec[nal  footing,  notwithstand- 
ing the  i)olicy  of  France  to  postpone  the  acknowledgment 
of  our  independence  to  the  conclusion  of  a  general  peace, 
discussed  with  perfect  frankness  the  true  policy  of  Great 
Britain  as  regards  the  fisheries  and  the  boundaries,  and  said 
in  conclusion,  "  tiiat  it  certainly  could  not  be  wise  in  Britain, 
whatever  it  might  be  in  other  nations,  thus  to  sow  the  seeds 
of  future  war  in  the  \'er}'  treaty  of  peace,  or  to  lay  in  it  the 
foundation  of  such  distrust  and  jealousies  as  on  the  one 
hand  would  forever  prevent  C(.)nfidence  and  real  friendship, 
and  on  the  other  naturally  lead  us  to  strengthen  our  security 
by  intimate  and  permanent  alliances  with  other  nations." 

\\\  regard  to  the  fisheries  the  "  considerations  ''  said 
"that  it  would  not  be  wise  in  Great  l^ritain  to  think  of 
dividing  the  fishery  with  P'rance  and  excluding  us,  because 
we  could  not  make  peace  at  such  an  expense,  and  because 
such  an  attempt  would  irritate  America  still  moie  ;  would 
perpetuate  her  resentment,  and  induce  her  to  use  every 
possible  means  of  retaliation,  and  by  imposing  the  most 
rigid  restraints  upon  a  commerce  with  Great  Britain." 


r 


'1'iif:  fisheries  dispute. 


31 


The  effect  of  Vauf;lian's  arrival  witli  tliese  considerations 
"  almost  simultaneously  with  Rayneval  "  was  decisive.  The 
Cabinet  at  once  decided  to  accept  the  American  proposition 
as  to  the  commission  of  Oswald,  and  to  adopt  the  American 
policy  as  opposed  to  that  of  France  and  Spain.  The  new 
commission  was  made  out  at  once  and  despatched  by 
Vaughan,  and  Lord  Shelburne  wrote  to  Oswald,  September 
23,  1782 — ''  Having  said  and  done  everything  which  has 
been  desired,  there  is  nothing  for  me  to  trouble  jou  with, 
except  to  add  this  :  We  have  put  the  greatest  confidence, 
I  believe,  ever  placed  in  man  in  the  American  Commission- 
ers" (III.  Shelburne,  pp.  267,  268). 

The  Negotiation  at  Paris.— Mr.  Adams'  Diary. 

An  extract  from  JMr.  Adams'  diary,  showing  what  was 
said  and  agreed  to  on  both  sides  about  the  fisheries  the  day 
before  the  signing  of  the  Provisional  Articles,  November 
29,  1782,  throws  light  upon  the  intention  of  both  parties, 
and  conclusively  answers  the  attempt  of  the  liritish  Com- 
missioners, at  Ghent  and  London,  toshowthat  the  Fisheries 
Article  had  been  annulled  by  the  War  of  1812  : 


29II1,  Friday.— Mot  Mr.  Fitzhcrbcrt,  Mr.  Oswald,  Mr.  Franklin, 
Mr.  Jay,  Mr.  Laurens,  and  Mr.  Stracliey,  at  Mr.  Jay's,  Hotel iV Orleans, 
and  spent  the  whole  day  in  discussion  about  the  fisheries  and  the 
Tories.  I  proposed  a  new  article  ccjncerning  the  fishery.  It  was  dis- 
cussed and  turned  in  every  light,  and  multitudes  of  amendments  pro- 
posed on  each  side  ;  and  at  last  the  article  drawn  as  it  was  tlnally 
agreed  to. 

The  other  English  gentlemen  being  withdrawn  on  some  occasion, 
I  asked  Mr.  Oswald  if  he  could  consent  to  leave  out  the  limitation  of 
three  leagues  from  all  their  shores  and  the  tifteen  from  those  of 
Louisburg.  He  said  in  his  own  opinion  he  was  for  it ;  but  his  instruc- 
tions were  such  that  he  could  not  do  it.  I  perceived  by  this  and  by 
several  incidents  and  little  circumstances  before,  whi(-h  1  had  re- 
marked to  my  colleagues,  who  are  much  of  the  same  opinion,  that  Mr. 
Oswald  had  an  instruction  not  to  settle  the  articles  of  the  fisheries  and 
refugees  without  the  concurrence  of  Mr.  Fitzherbert  and  Mr.  Strachey. 


32 


THE   FISHERIES  DISPUTE. 


Upon    the  return  of  tlie  other  -entlemcn.  Mr.  Strachey  proposed  to 
leave  out  tlie  word  "  ,i.t,dit  "  of  tisliing  and  make  it  "  liberty."     Mr 
•it..I,erlK-rt  said    that    the  word  ri^^ht  was   an  obnoxious  expression'. 
Ul)on  tins  I  rose  up  and  said  :   "  Cenilemen,  is  there  or  can  there  be  a 
clearer  n-iu  ?     |n  former  trcatics-that  of  Utrecht  and  that  of  I'aris 
-•ranee  and  I.ngland  have  claimed  the  right  an.I   used  the   word. 
When  (,od  Almighty  made  the  banks  of  Xcwfoundland,  at  three  lum- 
drcd  leagues  drstance  from  the  people  of  America,  and  at  six  hundred 
leagues  distance  from  those  of  France  and  Kngland,  did  lie  not  -dve  as 
good  a  nght  to  the  forn,er  as  to  the  latter?  If  Heaven,  as  the  Creator 
gave  a  nght,  u  ,s  ours  at  least  as  much  as  yours.     If  occupation  and 
possession  give  a  right,  we  have   it  as  clearly  as   vou.     If  war  and 
bh.od  and  treasure  give  a  right,  ours  is  as  good  as  vours.     We  have 
been  contmnousiy  fighting  in  Canada,  Cape  lireton,'and  Nova  Scotia 
for  the  defence  of  this  fishery,  and  have  expended  bevond  all  propor- 
tion more  than   you;   if  the  right  cannot  then  be  denied,  why  should 
U  not  be  acknowledged  and  put  out  of  dispute.     Why  sliould  we  leave 
room  tor  illiterate  fisliermen  to  wrangle  and  chicane  ?  " 

Mr.  Fitzhcrbcrt  said  : 


1  ho  argument  is  in  your  favor.     I  must  confess  your  reasons  ap- 
pear to  be  good,  but  Mr.  Oswald's  instructions  were  s'uch  that  he  did 
not  see  how  he  could  agree  with  us.     .     .     ."     After  hearing  all  this, 
Ml.  luzhcrl^ert,  Mr.  Oswald,  and  Mr.  Strachey  retired  for  some  time  • 
aiKl  returning,  Mr.  Fit.herbert  said  that,  upon  consulting  together  and 
uciglnng  everything  as  maturely  as  possible,  Mr.  Strachey  ami  himself 
ad  determined  to  advise  Mr.  Oswald  to  strike  with  us  accordin^^  to 
the  terms  we  had  proposed  as  our  ultimatum  respecting  the  fisirery 
and   the  loyalists.     Accordingly,  we  all  sat  down  and  i^ad  over  the 
whole  treaty  and  corrected  it,  and  agreed  to  meet  to-morrow  at  Mr 
Oswakl  s  house  to  sign  and   seal    the  treaties,  which  the  secretaries 
would  copy  fair  in  the  meantime. 

I  forgot  to  mention  that  when  we  were  upon  the  fishery,  and  Mr 
Strachev  and  Mr.  Fit.herbert  were  urging  us  to  leave  out  the  word 
nght  and  substitute  "  liberty,"  I  told  them  at  last,  in  answer  to 
their  proposal,  to  agree  upon  all  other  articles  and  leave  that  of  the 
fishery  to  be  a.ljusted  at  the  definitive  treaty.  I  never  could  put  my 
hands  to  any  article  without  satisfaction  about  the  fishery  ;  that  Con- 
gress had,  three  or  four  years  ago,  when  they  did  me  the  honor  to  "ive 
me  a  commission  to  make  a  Treaty  of  Commerce  with  Great  Britain 
given  me  a  positive  instruction  not  to  make  any  such  treaty  without 
an  article  in  the  Treaty  of  Peace  acknowledging  a  right  to  the  fishery ; 


TFIF.   FISIIKRIES   DISI'UTK. 


33 


thai  I  was  liappy  tliat  Mr.  Laurens  was  now  present,  who,  I  believe, 
was  in  Congress  at  tlie  time  and  imist  rcnieniher  it.  Mr.  I.,unens  upon 
this  said,  with  L;reat  hrniness,  tliat  lie  was  in  the  same  case,  and  could 
never  give  his  voice  for  any  articles  without  this,  Mr.  Jay  spoke  up 
and  said  it  could  not  be  a  peace,  it  would  be  only  an  insidious  truce 
without  it  (III.  |(,hn  Adams'  Works,  333.  335). 

To  this  may  be  properly  added  an  explanatory  state- 
ment by  Mr.  Adams  in  regard  to  the  siibseqtient  substitu- 
tion of  the  word  libcrt\'  for  right  in  parts  of  the  article. 
He  wrote  to  Mr.  Thomas  : 

That  third  article  was  demanded  as  an  nitintatum,  and  it  was  de- 
clared tli.it  no  Treaty  of  Peace  should  ever  be  made  without  it  ;  and 
when  tlie  British  Ministers  found  that  peace  could  not  be  made  with- 
out that  Article,  they  consented  ;  for  Britain  wanted  peace,  if  possible, 
more  than  we  did. 

We  demanded  it  as  a  right,  and  we  demanded  an  exjilicit  acknowl- 
edgment of  that  as  ;m  indis[)ensable  condition  'of  peace  ;  and  the 
w<n-d  right  was  in  the  article  as  agreed  to  by  the  liritish  Ministers,  liut 
they  afterward  re^piested  that  the  word  liberty  might  be  suhstitutcd 
instead  oi  ri^lit.  They  said  it  amounted  to  the  same  thing,  for  liberty 
was  right,  and  privilege  was  right,  but  the  word  //(,'/'/' might  be  more 
unpleasant  to  the  people  of  ICngland  than  !ib<rty;  and  we  did  not  think 
it  necessary  to  contend  for  a  word  (X.  .Vdanis'  Works,  404). 

Mr.  Adams'  statement  and  argument  on  this  point  is 
confirmed  by  the  fact  that  the  right  of  fishery,  as  discussed 
in  Congress  and  demanded  by  the  American  Commissioners 
as  a  condition  of  peace,  was  not  simply  the  riglit  of  taking 
fish  on  the  banks  of  Newfoundland,  the  Gulf  of  St,  Law- 
rence, and  other  places  in  the  sea,  but  the  full  fishery  right, 
liberty,  or  privilege- -by  whatever  name  it  might  be  called — 
given  by  the  article,  and  essential  to  make  their  olden  en- 
joyment of  the  fisheries  conlinuous  and  complete. 

The  Stevens'  collection  of  papers  bearing  on  the  Peace 
Negotiations,  from  the  Archives  of  Fr;vnce  and  the  State 
Paper  Ofilce  of  London,  which,  by  the  courtesy  of  Mr. 
Stevens  and  Mr.  Dwight,  I  had  the  opportunity  of  partially 
examining  at  the  State  Department,  contains  letters  from 
the     Entrlish     Commissioners     which    fully    confirm    Mr. 


34  THE   FISHERIES   DISPUTE. 

Adams'  statement  that  the  entire  article  was  a  condition  of 
peace  ;  and  they  show  that  the  luiglish  Commissioners  were 
doubtful  of  the  extent  of  their  instructions,  and  were  not 
quite  surj  how  the  treat)',  which  in  fact  br(niL;ht  about  the 
downfall  of  the  ministry,  would  be  received  in  ICnglantl. 

Mr.  Strachey  to  Mr.  Thomas  Tuwnsend,  Paris,  Novem- 
ber 20th.  Eleven  at  ni<,dit.  "The  article  of  the  fishery  has 
been  particularly  difficult  to  settle  as  we  thought  the  in- 
structions were  rather  limited.  It  is,  however,  be)-ond  'a 
dou'uL  that  there  eoiild  have  been  no  treaty  at  atl  if  ice  had 
not  aaopted  the  artiele  as  it  //o:e  stands." 

Mr.  Oswald  to  Mr.  Thomas  Tuwnsend,  Paris,  Novem- 
ber 30,  1782.  "  If  we  had  nut  given  way  in  the  article  of 
the  fishery  we  should  have  had  no  treaty  at  all,  Mr.  Adams 
having  declared  that  he  would  never  put  his  hand  to  any 
treaty  if  the  restraints  regarding  the  three  leagues  and  fif- 
teen leagues  were  not  tlispcnscLl  with,  as  \\ell  as  that  deny- 
ing his  countrymen  the  privilege  uf  drying  fish  on  the  un- 
settled parts  of  Newfoundland." 

As  the  Americans  made  the  entire  article  a  condition  of 
peace,  and  the  iMiglish  Commissioners  assented  to  it  with 
that  understanding,  the  conclusion  seems  reasunable,  if  not 
irresistible,  that  as  the  article  was  treated  as  one  b)-  them, 
it  should  have  been  treated  as  one  by  all  who  had  to  do 
with  it,  as  determining  the  relative  rights  and  privileges  of 
the  two  powers  in  the  fisheries,  in  a  division  of  sovereignty 
which  was  intended  to  be  not  transient  but  perpetual. 

The  essential  facts  of  the  negotiation  on  this  jioint  men- 
tioned by  Mr.  Adams,  and  their  striking  Cunlirmation  by 
the  letters  of  Mr.  Strachey  and  Air.  Oswald,  in  the  collection 
of  Mr,  Stevens,  were  probabl)- unknown  to  the  commission- 
ers at  Ghent ;  and  it  is  interesting  to  see  how  co;n  .lete  an 
answer  they  furnish  to  the  very  ingenious  and  •■-tnusible  ar- 
guuKMits  of  Lord  Jkithurst  in  his  correspondence  with  Mr, 
John  Ouincy  Adams  (October  30,  181 5)— arguments  that 
were  repeated  three  years  later  by  the  English  Commis- 
sioners at  London  (Dana's  Wheaton). 


TllK    nSHKKlKS   DISl'U  IK. 


35 


The  r/i,'-///j  ;ickiio\\lcil;^c(l  by  the  Treaty  of  17S3  were  not  only  dis- 
tinf,'iiisliahlc  fnjiii  the  lilierlies  conceded  liy  the  same  Treaty  in  tlic 
foundation  on  which  tliey  stand,  but  tliey  arc  carefully  distinjjuishcd  in 
tlie  wording  of  the  Treaty. 

.  .  .  In  the  Tiiird  Article  (".real  15ritain  acknowled'^ed  tlie  right 
of  the  I'nited  Slates  In  talie  fish  on  tiie  banks  of  Neufonntlhmd  and 
otlier  phices  froni  uiurji  (ireal  iSrilain  had  no  ri^lit  to  exi  hide  any  in- 
dividual nation,  but  they  were  to  havellie  lihcrty  to  cure  and  liry  them 
in  certain  un.ieltled  places  within  the  Ihitish  territory,  if  tiic  liber- 
ties thus  granted  were  to  be  as  perpetual  and  indelinite  as  the  right 
previously  recognized,  it  was  difticult  to  conceive  a  variation  of  language 
so  adapted  to  produce  a  different  impression,  and  above  all,  that  they 
should  have  admitted  so  strange  a  restriction  of  a  perpetual  and  in- 
definite right  as  those  with  winch  the  Article  concluded,  which  left  a 
right  so  iiraclic.il  and  subeneticial  as  this  wa.-,  admitted  to  be,  depend- 
ent on  the  will  of  liritish  subjects,  proprietors,  or  possessors  of  the  soil 
to  prohibit  its  exercise  altogether. 

It  was  therefore  surely  obvious  that  the  word  rifiht  was,  through- 
out the  Treaty,  uscd^as  api)lical)le  to  what  the  United  .States  were  to 
enjoy  in  virtue  of  a  recognized  independence  ;  and  the  word  liberty  to 
what  they  were  to  enjoy  as  concessions  strictly  dependen'  -a  the  Treaty 
itself  (cpiotetl  in  Dana's  Wheaton,  sec.  27:). 


The  point  insisted  on  by  L.orcl  Batluirst,  that  the  right  of 
the  United  States,  ackno\vled,i;cd  by  Enoland,  to  take  fish 
on  the  Banks  and  other  phices  from  which  Great  Britain 
could  not  exchide  any  nation,  sliows  that  tliat  clause  was 
not  the  gist  or  essence  of  the  Tliird  Article,  which  the 
Americans  demanded  as  tlie  condition  of  peace,  for  con- 
senting: to  which  tlie  English  Commissioners  justified  them- 
selves  by  the  declaration  that  there  could  be  no  treaty  with- 
out it.  The  change  of  the  word  right  to  liberty,  at  the 
urgent  rccpicst  of  the  Eiigush  Commissioners,  doubtful  of 
their  authority  and  fearful  as  to  the  result,  on  the  ground 
that  liberty  was  rigJit ,  and  that  the  change  was  therefore 
immaterial,  but  that  the  word  liberty  might  be  less  unpleas- 
ant to  the  people  of  England,  can  be  easily  understood 
when  we  read  their  lettei-s.  The  American  Commissioners 
had  neither  doubt  nor  fear  in  regard  to  their  share  in  the 
treaty.     They  knew  that  they  had  successfully  maintained 


3^  THE    FISHERIES    DISrUTE. 

the  rights,  the  boundaries,  and  the  resources  of  the  Repub- 
lic against  tlie  most  astute  diplomatists  of  Europe,  and  laid 
the  foundation  of  a  lasting  peace  wliich  surpassed,  in  the  ex- 
cellence of  Its  terms,  the  most  sanguine  expectations  of  the 
Americ  m  people. 

'• -V  few  hours  ago,"  wrote  Oswald  to  Shelburne  (No- 
vember 29.  1782),  "  wc  thought  it  impi)ssiblc  that  any  treaty 
could  be  made."  "  If,"  wrote  Strachey  to  Nepean,  "  this 
IS  not  as  good  a  peace  as  was  expected,  I  am  confident  it  is 
the  best  that  coidd  have  been  made.  Now,  are  we  to  be 
hanged  or  applauded  for  thus  rescuing  England  from  the 
American  war  ?  "  (ill.  .Shelburne's  Life,  by  Lord  Edmund 
l'"it/.maurice,  pp.    302,  303). 


'I'HK  Treaty  of  Ghent. 

No  change  in  the  matter  of  the  fisheries  was  matle  by 
the  Ireatyof  (iliont,  which  was  signed  on  December  24, 
l.S;4.  by  Lord  (lambier,  Henry  (^,oulburne,  and  Dr.  Will- 
iam Adams,  on  llie  part  of  Great  Britain;  and  by  lohn 
yuincy  Adams,  J.  A.  Bayard,  Jonathan  Russell,  and' Albert 
Gallatin,  on  the  part  of  the  United  .States. 

Mr.  Gallatin  wrote  to  the  Secretary  of  State,  with  the 
I  reaty  :  "  If  according  to  the  construction  of  the  Treaty  of 
17^3.  which  we  assumed,  the  right  was  not  abrogated  by  the 
war.  It  remains  entire,  since  we  most  explicitly  refused  to 
renounce  it  either  directly  or  indirectly."  Mr.'Adams  said 
of  the  ICnglish  Commissioners  :  "  Their  efTorts  to  obtain  our 
accpiicscence  in  their  pretensions  that  the  fishing  liberties 
had  been  forfeited  by  the  war  were  unwearied.  Tlic\-  pre- 
sented it  to  us  in  every  form  that  ingenuity  could  desire.  It 
was  the  first  stumbling-block  and  the  last  obstacle  to  tlie 
conclusion  of  the  Treatv  '  ((pioted  in  Sabine's  Report  on 
the  Principal  Fisheries  of  the  .Vmerican  Seas,  p.  161. 
Washington,  1S53). 

I  he  British  government   revived  the  pretence  after  the 
conclusion   of  the  Treaty,   and    the   Canadian    government 


THE   FISIIERIKS   DISPUTE. 


37 


presently    began    to    wani    and    harass  our  fishermen,  and 
some  fishins^-vessels  were  caplr.red. 

On  March  3.  181  5,  John  Adams  wrote  a  letter  of  singu- 
lar vigor  to  William  Cranch  from  Oni'icy.      He  says  : 

Our  twliorics  li.ivo  ucU  h'.'on  .ih.mcKnu  cl.  Tlicy  (.MniuU  ho  ab;in- 
doncd.  'I'hov  shall  not  he  ahaiKloiu-d.  Wo  hoKl  thorn  by  no  ^Mant. 
gift,  bavi;ain.  salo,  dr  last  will  and  tc-lamont.  noi  by  horodiiary  doscont 
from  Croat  r>;itain.  Wo  hold  thoni  in  tiulh  nut  as  kin;j,s  and  i>iiosts 
claim  thoir  rii^ln.s  and  powor.  by  hvponisy  and  (  rail,  but  liom  Cnd 
and  our  own  swords.  .  .  .  Wo  li.uo  .dl  tho  iiv;hts  .md  liboilio>  ol 
I'ai-lishnion  in  tho  tishoiios  in  as  full  and  amplo  a  niannor  .is  wo  h.ul 
boloro  tho  Rovolution  ;  wo  lnvi  novrr  foiloilotl.  sunvndoiotl.  alionato(4 
or  lost  anv  ono  pni.'nilio  of  thoso  ri;^hts  anil  libortios  ;  on  tho  oonti'.irv. 
we  conipoUod  tho  r.ritish  nation  to  arknowlodgc  thorn  in  the  most  st)l- 
cnin  maimor  in  tho  Tio.ity  ot  I'oaoo  ol  '.y^_]- 

Mr.  Adams  then  insisted  with  his  sturdy  common- 
sense  that  we  had  a  stronger,  clearer,  and  more  perfect 
right  than  the  Kritons  or  an>-  other  nation  of  luirojie  or 
on  the  globe,  for  they  were  all  indebted  to  us  and  our 
ancestors  for  all  these  fisheries.  We  discovered  them,  we 
explored  them,  we  diseovereil  and  setUed  the  countries 
round  about  them  at  our  own  exitense,  labor,  risk,  ar.d  in- 
dustry, without  assistance  from  Britain.  We  have  pos- 
.sessed,  occupied,  exercised  and  practised  them  hom  the 
beginning.     ... 

If  conquest  can  confer  any  right,  our  riglit  is  at  least 
equal  and  common  with  Englishmen  in  any  part  of  the 
world.  liideed,  it  is  inctunparably  superior,  for  wc  con- 
quered all  the  countries  about  the  fisheries  ;  we  conquered 
Cape  l?reton,  Nova  Scotia,  and  dispossessed  the  l-'rench, 
both  hostile  and  neutral. 

In  conclusion,  Mr.  .Adams  declared  that  the  article  in  the 
Treaty  of  1783  was  still  in  force,  and  added,  "  I  say  it  is  an 
acknowledgment  not  only  of  an  antecedent  right,  it  is  of 
eternal  obligation.'"  (,X.  Adani<"  Works,  i,-,i    133. 

According  to  Mr.  Rush  the  difference  of  t^pinion  in  re- 
gard   to  the  fisheries   had  in    1818  risen  to  a  considerable 


38 


THE   FISHERIES    DISPUTE. 


height,  and  the  United  States  wholly  dissented  from  the 
doctrine  advanced  by  the  l^ritish  Commissioners,  that  the 
Treaty  of  1783,  not  being-  re-cnactcd  or  confirmed  by  the 
Treaty  of  Ghent,  was  annulled  by  the  War  of  l8i2.  They 
insisted  that  the  treaty,  after  a  seven  years'  contest,  made 
two  empires  out  of  one  ;  that  tiie  entire  instrument  implied 
permanence — the  use  of  the  word  ;7>/;/  in  one  place  and 
liberty  in  another  could  make  no  difterence  ;  that  a  right 
of  unlimited  duration  secured  by  so  solenui  a  deed  was  as 
much  a  right  as  if  stipulated  by  any  other  term.  Liberty 
might  have  seemed  a  more  appropriate  term  where  an  en- 
joyment was  guaranteed  to  one  party  of  a  tlihig  adjoining 
territory  allotted  to  the  other,  but  it  took  nothing  from  tlie 
permanency  of  the  allotment.  In  point  of  principle  the 
United  States  was  pre-eminently  entitled  to  all  the  fisheries, 
and  the  restriction  at  the  close  of  the  article  s;  niped  per- 
manence upon  it.  The  Treaty  of  17S3  was  altogether 
unlike  common  treaties.  It  contemplated  a  permanent  di- 
vision of  co-equal  rights,  not  a  transient  grant  of  mere  priv- 
ileges ;  the  acknowledgment  of  independence,  the  estab- 
lishment of  boundaries,  and  the  guarantee  of  the  fisheries 
each  rested  upon  the  same  illimitable  basis.  According 
to  Mr.  Rush  neither  side  yielded  its  conviction  to  the  rea- 
soning of  the  other,  and  this  being  exhausted,  there  was  no 
resource  left  with  nations  disposed  to  peace  but  a  compro- 
mise, and  the  result  was  the  first  article  of  the  Treaty  of 
1818,  under  whicli  have  arisen  the  troubles  which  we  have 
made  such  fruitless  efforts  to  escape. 


The  Fisheries  Convkntio.\  of  1818. 

Whereas,  DiffortMices  liavc  arisen  rospeoling  the  liberty  ■^laimcd 
by  the  United  States  for  tlie  inlia]jitants  tliereof  to  take,  dry,  and  cure 
fisii  on  certain  coasts,  bays,  harbors,  and  creeks  of  His  Hritannic  M.aj- 
csty's  dominions  in  Anierica,  it  is  agreed  between  the  high  contracting 
parties  that 

"  Aktkt.F.  I.— The  inlialMtants  of  the  United  States  sliall  have 
lurever.  in  common  with  llie  suhjects  of  His  Britannic  Majesty,  the 


^ 


THE    FISHERIES    DISPUTE. 


39 


1 


liberty  to  take  fish  of  every  kind  on  tliat  part  of  tlic  southern  coast  of 
Newfoundland  whicli  extends  from  Cape  Kay  to  the  Kanieau  Islands, 
on  the  western  and  southern  coasts  of  Newfoundl.ind  from  the  said 
Cape  Ray  to  the  (hiissnn  Islands,  on  the  shores  of  the  Ma-dalen  Isl- 
ands, and  also  on  the  coasts,  bays,  harbors,  and  creeks  from  Mount 
Joly  on  the  soutlurn  coast  of  Labrador,  to  and  throui;h  the  straits  of 
Belle  Isle,  and  thence  nijrihuardly  indefinitely  ;.lon;4  the  coast,  without 
prejudice,  however,  to  any  of  the  exclusive  riyl  is  of  the  Hudson  P-ay 
Company  ;  and  that  the  American  lishermcn  shall  have  liljerty  forever 
to  dry  and  cure  fish  in  any  of  the  unsettled  bay..  harl)ors,  and  creeks 
of  the  southern  part  of  the  coast  of  Newfoundland,  almve  described, 
and  ot  the  coast  of  Labratlor  ;  but  so  soon  as  the  same,  or  ar  portion 
thereof,  shall  be  settled,  it  shall  not  be  lawful  for  the  said  fishermen 
to  tiry  or  cure  fish  at  such  ]Kirtion  so  settled  without  previous  a;^ree- 
ment  for  such  purpose  with  the  inhabitards,  proprietors,  or  possessors 
of  the  ground.  And  the  United  Stales  hereby  renounce  forever  any 
liberty  heretofore  enjoyed  or  claimed  by  the  inhabitants  thereof  to 
take,  dry,  or  cure  lish  on  or  within  thre>.  marine  miles  of  aiiv  nf  tlie 
coasts,  bays,  creeks,  or  harljors  of  His  Britannic  Majesty's  dominions 
in  America  not  infhuletl  within  the  abo\e  mentioned  limits:  ruo- 
ViUKi).  II(i\\kvi:k.  that  the  American  tlshermen  shall  be  admitted  to 
enter  such  ba\s  or  harbors  for  the  purpose  of  shelter  and  of  rejiairint^ 
damagi.'s  tlun-eiu,  of  piirchasin;^  wood,  and  of  obtainin;^  water,  and  for 
no  other  purpose  whate\-e".  But  they  sliall  be  under  such  reslrirtions 
as  may  be  necessary  to  pie\eiU  their  takin;.y,  drvin;^.  oi'  cuiiii;^  tish 
therein,  or  in  any  other  manner  whatever  abiising  the  privile-e^  herebv 
reserved  to  them." 


The  complications  and  mistiiulerslandings  that  arose 
under  tliis  convention  threatened  the  peace  of  the  two  na- 
tions, and  by  the  Treatj'  of  1854,  tnade  by  Mr.  Marcy  and 
Lord  Elgin,  the  first  article  of  which  recited  that  the  liberty 
it  granted  W:v:,  "in  addition  to  the  liberty  secured  to  the 
United  !■■  rates  .".shenncn  by  the  convention  of  October  20, 
1818,"  \\  J  t'.niporarily  recovered  the  enjo}'mcnt  of  some  of 
our  ancient  nghts  ."ocognized  and  continued  b\'  the  Treaty 
of  1783  ;  the  coiisideraiion  given  on  oin-  part  being  a  reci- 
procity of  fishing  liberty,  u:m1  of  trade  in  certain  articles 
supposed  to  be  greatly  to  the  benefit  of  Canada.  This 
treaty  was  terminated  on  our  notice  in  1S66,  throwing  tis 
back  as  Great  l!ritain  contended,  and  as  we  have  admitted, 


"ivl 


40 


THE   FISHERIES   DISPUTE. 


on  the  Treaty  of  i8iS.     Then  came  the  Treaty  of  1871   -iv- 
ing  us  the  riylit  to   fish  in-sho.e   under  certain  limitations 
and  this,  after  the    rejection   by  tiie  Senate  on  February  -> 
1^75,  of  another  reciprocity  treaty,  was  terminated  by  our 
act  on  July  I.  ,885,  brino-ing  again    into  ooeration  the  fish- 
eries article  of  1 818. 

Last  came  the  Treaty  of  Washinoton,  with  its  mutual 
grants  la  regard  to  the  fisheries  and  trade,  and  the  memora- 
ble Article  XXII.,  commencing,  "  Inasmuch  as  it  is  asserted 
by  the  government  of  Ilcr  IJritannic  Majesty  that  the 
privileges  accorded  to  the  citizens  of  the  United  States  un- 
der Article  XVIII.  of  this  treaty,  are  of  greater  value  Ihan 
those  accorded  by  Articles  XIX.  and  XXI.  of  this  treaty  to 
the  subjects  of  Her  Bntannic  M.jesty,  and  this  assertion  is 
not  admitted  by  the  Governn^  v  of  the  United  States  it 
.s  further  agreed,"  etc,  and  thci.  t  cd  the  provision  for 

commissioners,  not  to  ascertain  whci  _r  there  was  in  fact 
an  inequality  of  advantage,  and  if  so  which  side  had  re- 
ceived the  largest  advantage,  and  to  what  amount,  and 
which  should  pay  the  other  for  the  difference,  but  to  dc- 
termuie  the  amount  of  any  compensation  which  in  their 
opinion  ought  to  be  paid  by  the  Government  of  the  United 
States  to  the  government  of  Her  liritannic  Majesty  in  re- 
turn for  the  privileges  accorded  to  the  citizens  of  the  United 
States  under  Article  XVIiI. 

The  advantage  gained  by  Great  Britain  in  this  form  of 
submission  to  the  commissioners  was  emphasized    by  the 
joint  instruction  to  the  Count  Ikust,  by  whom,  as  the  Aus- 
trian Ambassador  at  London,  the  umpire  was  to  be  selected 
that   the  appointment  of  the  Minister  of  Belgium  at  Wash- 
ington would  be  acceptable,  not  simply  to  the  government 
of  Great  Britain,  but  to  that  of  the  United  States       Why  it 
had  become  acceptable  to  President  Grant  and  his  Cabinet 
has  never  been  explained,   but  to  one  suggestion   of  Mr 
Blaine,  by  way  of  explanation  and  apology,  made  in  his  in- 
teresting Sketch  of  the  fisheries  dispute  from    181 8  to  1878 
I  may  properly  allude  in  passing.     Mr.  Blaine  intimates  that 


THE   FISHERIES  DISPUTE. 


41 


it  was  realized  at  Washington  "  that  Count  Von  Beust,  the 
Austrian  Ambassador,  might  select  some  one  even  more 
objectionable  than  M.  Delfosse,  if  that  were  possible."* 

From  my  official  and  personal  relations  at  Vienna  with 
the  late  Chancellor  Von  Beust  I  feel  bound  to  say  that  this 
extraordinary  and  dishonoring  suggestion  does  the  greatest 
injustice  to  the  character  and  fame  of  that  illustrious  states- 
man, whose  eminent  success,  aided  by  the  Count  Andrassy 
at  Pesth,  in  restoring  the  harmony  of  Austria  and  Hungary, 
and  in  introducing  into  the  government  of  the  dual  empire 
changes  in  the  direction  of  freedom,  education,  and  national 
progress,  was  not  a  little  influenced  by  his  careful  study  of 
American  principles  and  American  institutions,  and  entitles 
his  memory  to  the  sincere  regard  of  the  American  people. 
The  suggestion  that  Count  Beust,  as  the  Austro-Iiunga- 
rian   Ambassador   in   London,   charged  with  the   appoint- 
ment of  a  proper  person  as  umpire   in  the   Halifax  award, 
would  of  his  own  motion  have  selected  a  diplomatic  agent, 
to  whom  the  United  States  had  formally  objectec',  and  whom 
Earl  de  Grey  had  declined  to  name   as  one  supposed  to  be 
incap'-'.citated  by  the  treaty  arrangements  between  Belgium 
and   Great  Britain,  is  one   entirely   inconsistent,    not   only 
with  the  Count's  character  and  with  his  friendship  to  Amer- 
ica, as  shown  in  the   Naturalization  Treaty,  but  especially 
with  his  regard  for  diplomatic  propriety  and  his  own  fame. 
So  great   a   breach   of  faith   toward  a  trustful   government 
would  have  been    condemned  by  every  court  in    ICurope, 
and  by  honorable  diplomatists  throughout  the  world. 

The  award  by  the  Belgium  minister  of  $5,500,000,  in 
addition  to  the  duties  remitted  by  us  estimated  at  $4,200,- 
000,  in  the  face  of  the  unimpeachable  evidence  cited  by  Mr. 
Secretary  ICvarts  in  his  despatch  of  September  27,  1878, 
seems  to  have  been  regarded  in  England  as  a  signal  tri- 
umph for  British  and  Canadian  diplomacy.  The  prompt 
payment  of  that  award  was  approved  by  the  American 
people  notwithstanding  the  rule  laid  down  by  Vattel 
♦Twenty  Years  of  Congress,  II.,  630. 


42  THE    FISHERIES   DISPUTE. 

that  "  if  the  arbitrators  by  pronouncing  a  sentence  evidently 
unjust  and  unreasonable  should  forfeit  the  character  with 
which  they  are  invested,  their  judgment  would  deserve  no 
attention  ;  "  but  that  singular  award  and  the  steps  which 
led  to  it  may  help  to  explain  American  reluctance,  should 
any  be  exhibited,  to  further  arbitration  on  the  fisheries 
question. 

The  Effect  of  War  on  Treaties. 
Having  referred  to  the  facts  which  show  the  intention  of 
the  high  contracting  parties  in  1783,  that  the  article  on  the 
fisheries  in  the  Treaty  of  Separation  reciting  their  division 
between  the  two  empires  should  not  be  temporary  and  that 
transient,    but  fundamental,  permanent,  and  endurin-r,  and 
the  acceptance  of  that   article  by  the  British  cabinet  was  a 
condition  of  the  peace-facts  long  since  established  on  the 
American  side  by  the   testimony  of  our  own  a-chives    and 
now   confirmed    by  the  letters  of  the   English   negotiators 
gathered  after  a  hundred  years  from  the  State  Paper  Office 
of  London-it  may  be  proper  m  ref.r  to  the  simple  rule  of 
law,  which  should  determine  the  question  whether  that  ar- 
ticle could  be  abrogated,  as  the  British  commissioners  con- 
tended, by  the  War  of  18 12. 

That  rule  is  thus  stated  in  Field's  International  Code  : 

Tki:atif.s  Uxakkf-cted  p.v  War. 

^yar  docs  not  affect  the  compacts  of  a  nation  except  when  so  pro- 
vided in  such  contracts  ;  and  except  also  tliat  executory  stipulations 
■t.  a  special  compact  between  beUigerents,  wliich  bv  their  nature  are 
upphcable  only  in  time  of  peace,  arc  suspended  during  the  war. 

Wharton  says  : 

Treaties  stipulating  for  a  permanent  arrangement  of  territorial  and 
otfwr  national  rights  ■c.x^-.MWx^  most  suspended  during    the  wir    and 
revived  at  peace,  unless  they  are  revived  by  the  parties,  or  new  repug- 
nant st.pt.lations  are  made  (II.  Wharton's  International   Lr  ,v  irL^t 
Chapter  VI.,  Sec.  135).  ^^'^^st, 

A  large  and  looser  doctrine  was  contended  for  in  Society 
"/v.  New  Haven  in  the  Supreme  Court  of  the  United  States 


THE   FISHERIES   DISPUTE. 


43 


in  1823,  and  the  Court  was  asked  to  recognize  the  doctrine 
urged  at  the  bar,  that  treaties  become  extinguished  ipso 
facto  by  a  war  between  two  governments.  But  the  Court 
said,  by  Justice  Washington  : 

Whatever  may  be  the  Lititude  of  doctrine  laid  down  by  element- 
ary writers  on  liie  law  of  nations,  dealin;^'  in  general  terms  in  relation 
to  the  subject,  we  are  satisfied  the  doctrine  contended  for  is  not  uni- 
versally true  (VIII.  Wharton,  494). 

In  an  English  case  arising  under  tlie  Treaty  of  1794,  the 
principle  was  distinctly  recognized  that  they  were  to  deter- 
mine, by  reasonable  construction,  tlic  intention  of  the  treaty 
(Sutton  vs.  Sutton,  i  R.  and  M.,  663).  The  question  was, 
whether  American  subjects  who  hold  land  in  England  were 
to  be  c<Misidered,  in  respect  of  such  lands,  as  aliens  or  sub- 
jects of  Great  Britain,  or  whether  the  War  of  181 2  had  de- 
termined the  Treaty  of  1 794.  The  Master  of  the  Rolls  said  : 
"  The  privileges  of  nations  being  reciprocally  good,  not  only 
to  actual  possession  of  land,  but  to  their  heirs  and  assigns,  it 
is  a  reasonable  construction  that  it  was  the  intention  of  the 
treatv  that  the  operation  of  the  treaty  should  be  pen  lanent, 
and  not  depend  upon  the  continuance  of  a  state  of  p^ace." 

Mr.  l'.laine,  in  his  "Twenty  Years  of  Congress"  (II.,  p. 
617),  alluded  to 

The  rather  curious  fact,  apparently  unknown  or  unnoticed  by  the 
negotiators  of  1S14,  that  as  late  as  1768  the  law  officers  of  the  crown, 
under  the  last  ministry  of  Lord  Chatham  (to  whom  was  referred  the 
Treaty  of  16S6  with  France,  containing  certain  stipulations  in  relation 
to  the  Newfoundland  fisheries),  gave  as  their  opinion  that  such  clauses 
were  permanent  in  their  character,  and  that  so  far  the  treaty  was  valid, 
notwithbianding  subseciucnt  war. 

Mr.  Blaine  has  kindly  referred  me  to  these  cases  in 
Chalmcr's  opinions  of  eminent  lawyers. 

The  question  to  which  they  relate  arose  upon  the  fifth 
and  sixth  articles  of  the  Treaty  of  Peace  and  Neutrality  in 
America,  concluded  between  England  and  France,  Novem- 
ber  16,  16S6,  touching  the  neutral  rights,  conditions,  and 


44 


TIIK   FISHKRIES   DISPUTE. 


d    ab.l.t.es  of  the  .nhabitants  of  each  kingdom  as  regards 
ado  a,,d  fisluno.  ,„  ^hc  places  possessed  by  them  in  Amer- 
ca      On  Apnl  7,  1753,  the  attorney  and  soh-citor-general 
Ivyder  and  Murray,  advised  the  Government  of  thdr  opin- 
ion, u-.thout  statement  of  their  reasons,  that  "  tlie  said  treaty 
.s^now  ,n  force        On   February  12,  1765.  the  attorney  and 
sohctor-general.  Norton  and   Dc  Grey,  announced  as  their 
op.mon,  u-.thout  statement  of  their  reasons,  "  that  the  said 
reaty   u-as    not    in    force."     On     February    15,    ,765     Sir 
ames  Marriot.  the  advocate-general.  gave  his  opinion  that 
the    1  reaty  of  Ncutrah'ty  was  a  subsisting  treaty  ;  and  this 
view   ,s    sustained    in  a  very  careful    and   ehiborate    argu- 
ment   by  broad  and  just  considerations  of  good  faith  alul 
enhghtened  civih-zation.   worthy  of  the  noblest  statesman- 
snip  and  diplomacy  of  Fngland. 

His  opinion  showed  that  the  treaties  arc  in  their  nature 
contracts,  and  are  to  be  argued  on  the  footing  of  obligations 
winch  arise  from  contract  expressed  or  necessarily  implied 
and  th^it  the  question  of  deciding  the   validity  and  exist- 
ence   of  a  public    treaty   is    to  be  governed  by  the  same 
rules  and  reasonings  applicable  to  other  contrac'ts.     Touch- 
ing   their    revival,    from     the    very   nature    of   the    cause 
claiming  to  operate  which  had  suspended  the  force  of  the 
conve.)t.on    especially  if  the  objects  of  good  faith  are  con- 
cerned ,n  the  revival,  Sir  James  alluded  to  the  fact  that  the 
decision   of  such    questions,  in    their    age   of   negotiation, 
must  dilter  from  the  practices  of  barbarous  nations\vith  but 
partial   notions   of  modern    civilization;  and  that   "in   the 
present  age,  as  war  is  commenced  on   different   principles 
from  the  wars  of  antiquity,  so  it  ends  with  different  princi"- 
ples,  in  both  more  to  the  honor  of  humanity  " 

_  He  showed  that  the  public  law  of  Europe  abhors  the 
spirit  of  ancient  wars,  and  that  war  in  these  times  is  con- 
sidered but  as  an  appeal  to  the  rest  of  the  powers  of  luiropc 
and  IS  but  a  temporary  exertion  of  force  to  decide  a  point 
of  interest  which  no  human  tribunal  could  determine,  and 
he  said  :  ' 


i 


IMF,    r'lSIIERIKS    DISPUTE. 


45 


i 


Tliiis  it  i>.  in  iib  nauirc.  bul  ;i  siis/>t)isr  of  tin.'  other  ri|^lits  not  in 
contisl,  whuli  existed  between  tlie  hellij;crent  powers  reciprocally,  be- 
fore the  war  ;  when  \vc  reason,  therefore,  that  a  war  being  ended,  the 
public  reciprocal  rights  and  oblij^Mtions,  not  specially  abrogated,  but 
suspended,  i-iiur!^<.\  and  acquire  their  former  vigor  and  activity,  the 
reasoning  of  it  is  just  ;  is  so,  because  it  is  consistent  with  the  relations, 
and  arises  out  of  the  nature  of  tilings.  We  need  not  urge  the  neces- 
sity of  particular  stipulations,  to  revive  such  obligations  ;  it  is  the  very 
essence  and  necessary  idea  of  ri.-conciliatio)i,  implied  of  course,  if  not 
declared,  in  every  definitive  treaty  of  pacification,  that  the  conimer- 
ci.il  and  friendly  intercourse  of  the  cmitracting  powers  is  replaced  in 
its  former  state. 

.  .  .  Such  is  the  force  of  those  exalted  principles  of  pub- 
lic law  which,  in  these  happier  iu^es  of  human  society,  restore  their 
proper  empire  over  the  minds  of  men  to  good  sense  and  good  faith, 
with  a  force  superior  to  the  passions  or  prejudices  of  nations  long 
accustomed  to  be  rivals  ;  and  such  I  conceive  to  be  the  law  of  liurope 
in  its  present  state,  which,  whenever  these  doctrines,  founded  in  rea- 
son and  humanity,  shall  cease  to  prev;ul,  will  fall  back  into  all  the 
glocjm  of  a  barbarous  condition  of  ignorance  and  despotism. 

The  war  between  iMigland  and  1'" ranee,  which  fv)llowed  the  revolu- 
tion, suspended  tin-'  commercial  treaty  of  i6iS6,  called  the  Treaty  t)f 
Neutrality.  The  Treaty  of  I'cace,  concluded  alRyswick,  1697,  takes  no 
notice  of  it  nominally,  but  revives  it,  by  the  general  t[uality  of  a  treaty, 
l)utting  an  end  to  the  war  by  the  strongest  terms  of  a  general  coinpie- 
hension,  restcnang  the  commerce  of  the  two  nations,  reciiirocally,  to 
the  stale  in  which  it  existetl  before  the  war. 

1  have  the  honor  to  submit  that  the  Treaty  of  1686  may  he  insisted 
upon  as  a  subsisting  treaty,  not  only  because  it  is  revived,  by  a  str(mg 
implication  of  words  and  facts,  but  for  that  it  may  be  understood  to 
subsist  because  it  never  was  abrogated.* 

The  exalted  principles  of  ptiblic  law  declared  in  that 
masterly  opinion  of  the  Advocate-General  in  1765,  confirm- 
atory of  the  opinion  of  Attorney-General  Ryder  and  So- 
licitor-General Murray  in  1753,  that  the  fisheries  article  in 
the  French  and  l^nglish  treaty  of  1686,  v.liile  suspended  by 
war,  had  been  restored  by  tite  peace,  apply  in  still  greater 
force  to  the  fisheries  article  in  the  Anolo-Ainerican  Treaty 

•  Vol.  II.,  pp.  344-355,  of  Opinions  of  Kmiuent  Lawyers  on  Vari- 
ous PcMiUs  of  English  Jurisprudence,  chietly  Concerning  the  Colonics, 
Fisheiies,  and  Commerce  of  (ueat  Britain.  i5y  George  Chalmers. 
London  ■    Reed  &  Hunter,  1814. 


46 


THE   FISHERIES  DISPUTE. 


o     ..S3,  Which  was  not  only  a  treaty  of  peace  but  of  sepa- 
ration   MUendcd   to   settle   defumdy  and  permanently   t^ie 

m  uhat  had  before  been  held  by  them  in  common.     The 
War  of  Ibi2  suspended  the  exercise  of  the  rights  and  liber- 

^n^^'^^'f  H  ';:'"  '^'^'-"^  ^'^^^'^^^  ^^''^  -^-"  ^'-  -r  was 
o  no  ce  of  the  hsher.es  clause  of  1783  nominally,  "  revivcS 
J^y    he  general  quality  of  a  treaty  putting  an  end  to  the 

va.    a„  1  ,,stor,ng  the  commerce  of  the  two  nations  recip- 

oeal  y  to  the  state  in  which  it  existed  before  the  war." 
U  1  e  her  or  not  the  weighty  opinion  of  Sir  James  Marriott 

vas  known  to  the  JJritish  Connnissioners  at  Ghent  or  at 
London,  ,t  w.ll  not  be  overlooked  by  Americans  or  by 
L  .ghshmen  .n  considering  the  question  of  the  fisheries 
inulci  the  mtereslmg  circumstances  of  to-day. 

Thk  Govkrxor-Genkral  of  Caxada. 
Jt  may  be  regarded  as  a  fortunate  circumstance  at  this 
juncture  that  the  Governor-General  of  Canada  is  a  grand 
son  oUhe  great  Jinglish  Minister  by  whom  our  Revolution- 
a.>  \V  ar  was  happdy  ended,  on  terms  so  fair  and  reasonable 
as  fo,  ever  to  entitle  the  me.nory  of  Shelburne  to  the  highest 
honor  .n  both  countries.      His  i.:..cellency  is  fandliar  with 
he  Instonc  sketch  by  his  brother.  Lord  Edmond  Fit.uau- 
c      .the  conduct  of  the  peace  negotiations  by  that  states^ 
n         the  story  of  whose  connection  therewith  has  been  of 
.nal  scrvce  ,n  correcting  the  errors  into  which  American 

o  1  anccandSpam  to  deprive  us  of  the  boundaries  a.rd 
lie  fisheries  ;  to  the  secret  mission  of  Rayneval  to  l^vdand 
o  secure  .Shelburne's  adhesion  to  their  scheme  ;  and  to  th 
.eat  sery.ce  rendered  to  the  Republic  by  ]3enjamin 
Vaughan  u.  hastemng  to  Rowo„d  almost  simultaneously 
to  coun  eract  the  designs  <,f  Rayneval.  and  to  a.sist  in  en 
gagmg  or  the  American  Con.nissioners  the  confidence  of 
Lord  bhelburne  and  a  fair  share  of  American  ri^dits 


THE    MSIIl'RIES   DISPUTE. 


47 


I 


*  Lord  LansdiAvnc  knows  that  at  that  time  no  peace  was 
possible  willidut  tlie  luU  recognition  of  our  rii^ht  to  the 
fi-hcrics.  1  lis  Excellency  without  doubt  values  arii;ht  the 
inestimable  service  rendered  by  Shelburne  to  r-n<j;land, 
America,  ami  the  world,  at  the  expense  of  a  temporary 
I)opularit\'.  lie  will  doubtless  be  the  last  person  in  Canada 
to  wish  t(.)  disturb  the  international  friendship  to  which  his 
illustrious  ancestor  so  pre-eminently  contributeil,  and  whicli, 
as  rej^ards  the  fislieries,  woidd  probably  never  have  been 
disturbed  had  the  Shelburne  article  been  allowed  to  stand 
as  he  approved  it ;  and  perhaps  the  surest  guarantee  for  our 
mutu.d  good-will  will  be  found  in  a  return  to  the  terms  of 
the  treat)-  so  conspicuously  identified  with  his  fame. 

C()NXi,ui)i\(;  .Suc;gi;stions. 

In  case  Congress  shall  be  clear,  as  the  Retaliation  ]-!ill 
would  stem  to  indicate,  that  (ircat  Britain  has  violated  Ar- 
ticle 1.  of  the  Treat}-  of  iSlS,  and  that  the  Unitetl  Slates  is 
therefore  entitled,  under  the  rule  stated  b\-  Madison  and 
established  by  her  own  precedent,  to  abrogate  that  article, 
and  to  fall  back  upon  Article  III.  of  the  Treaty  of  Peace 
as  defining  the  separate  rights  of  the  United  States  and 
Great  Britain  in  the  New-foundland  fisheries  at  the  divi- 
sion of  the  empire  in  1783,  Congress  may  be  disposed  to 
con>ider  the  expediency  of  einbod}-ing  their  views  on  this 
point  in  tlie  Retaliation  Act,  or  in  a  separate  act,  so  that 
the  future  negotiations  for  an  amicable  adjustment  of  the 
pending  difficulties  may  not  be  hampered  or  thwarted  by 
the  pretence,  Iieretofore  made,  that  the  rights  claimed  by  our 
Ciovernment  for  i\mcrican  fishermen  are  denied  to  them  by 
the  third  article  of  the  Treaty  of  1818,  which  the  British 
have  tliemselves  violated. 

Should  this  conclusion  be  approved  by  Congress,  it 
would  almost  follow  the  preamble  and  enacting  clause  of 
the  Act  abrogating  the  treaties  with  l'"rance  (July  7,  1798) 
siiould  it  declare  that,  inasmuch  as  the  third  arti^-Zie  has  been 
repeatedly  violated  on  the  part  of  the  British  Government, 


am 


48 


Tiir:  KisiiKKiF.s  nisi'UTi;. 


aiul  llie  ju^l  cl.iiins  of  tlic  I'liitcd  States  for  reparation  of 
the  injuries  so  coimnitted  have  been  refused,  and  their  at- 
tempts tf)  nc;4otiate  an  amicable  settlement  <>f  the  s.-me  have 
failed,  and  under  the  anthorit}'  of  the  British  (iovernment 
a  course  of  tn  atinent  is  still  pursued  a;j;aiiist  tin-  t"l-^hl■rmen 
of  the  United  States,  infractintf  the  said  article  and  hostile 
to  the  ri;4hts  of  a  free  and  indepcntlent  nation,  it  is  enacted 
by  Con.L;ress  thai  the  Lhiited  States  arc  of  rii;ht  frcetl  and 
exonerated  from  tlie  stipulations  of  the  said  article,  and 
that  the  same  shall  not  henceforth  be  regarded  as  legally  ob- 
ligatory on  the  ( iovcriiment  or  citizens  of  the  I'liitcd  States. 

While  Congress  may  approve  the  propriety  and  neces- 
sity of  such  an  act.  it  may  at  the  same  time  deem  it  pro[icr 
to  postpone  the  taking  effect  of  such  an  enactment,  so  long 
as  a  re.isonable  hope  may  be  entertained  that  (ireat  l^ritain 
will  \oluntaril\-  do  full  and  ami)le  justice  to  our  lisjicrmen  ; 
and  C'dUgicss  may  deem  it  wise  to  leave  it  to  the  Tresidcnt. 
as  in  the  Rut. illation  liill,  to  give  it  effect  in  his  discretion. 

It  is  de^irable  that  n<it  only  (ireat  Britain,  but  ah  the 
world,  should  see  that,  while  resolved  to  maintain  our  rights 
and  pidtect  our  fishermen,  and  to  end  at  once  and  forever 
the  petty  vexations  to  which  th.ej-  ha\e  been  sidijected  and 
which  now  threaten  the  international  peace,  wc  sincerely 
desire,  if  posiiible,  to  preserve  and  improve  our  fi-iendly  rela- 
tions with  (ireat  l^ritain  and  her  de[>endencies  on  this  con- 
tinent. 

]\ecalling  the  prominent  part  so  ably  borne  by  you  at 
(iene\a  in  the  tribunal  which,  to  tlie  admiration  of  luirope, 
clo<o<l  aniic.'bly  the  Alabama  question,  we.  may  hail  as  of 
good  omen  }our  presence  in  the  Senate  at  this  time,  when 
Kngland  and  America  both  desire  the  closing  of  tlic  fish- 
cries  dis[nite.  and  trusting  that  we  maj'  soon  have  an  early 
and  satisfactory  eiul  of  this  business  on  the  basis  of  the 
original  right  of  both  countries, 

I  am,  ver\-  resijcctfully  and  faithfu!l\-  yours, 

JoiIX  J.W. 
191  Si.eoMi  Avr.Ni  i:,  Ni-w  York, 

I'l.bnuu y  ::2,  1S87. 


I    i 


I     ! 


